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Brenda's Husband, Joe's Dad and Bonny's Brother.

Monday, July 10, 2017


Folks, I don't expect to be back from vacation until July 31, 2017. See you back then, tanned, rested and ready.

Tuesday, May 16, 2017

Can a State Hold that Powers of Attorney Will Only Bind Principals to Arbitration if Binding to Arbitration Is Expressly Mentioned in the POA?

A wife has a general power of attorney to act on behalf of her husband. A daughter has a general power of attorney to act on behalf of her mother. Using the powers of attorney they sign their loved ones into a nursing home. The paperwork includes a binding arbitration clause. When the husband and mother die, the wife and daughter blame the deaths on the nursing home and sue it. The nursing home moves to dismiss the suits to stick the plaintiffs with binding arbitration.

The trial court rules in favor of the plaintiffs, as does the court of appeals, as does the Kentucky Supreme Court. They hold that under Kentucky law a power of attorney can only bind a principal to arbitration only if the right to bind the principal to arbitration is expressly provided in the power of attorney.

The Supreme Court of the United States ruled in favor of the nursing home. They held that the Federal Arbitration Act superseded any state rule disfavoring arbitration, and, that, therefore, Kentucky's rule was contrary to that act.

Justice Kagan wrote for seven members of the court. New Justice Gorsuch recused himself, and Justice Thomas dissented consistently with earlier opinions of his that the Federal Arbitration Act doesn't apply to state court proceedings.

Kindred Nursing Centers, v. Clark, No. 16-32, 581 U.S. _____, (May 15, 2017.)

Some disputes are better suited to arbitration than to trial.  Arbitration with choice of law is good for international trade disputes, especially where the contracting parties can each pay the costs of hiring the arbitrators, etc.  Otherwise, an unscrupulous party could grow a million flowers of delay that could drag on for years. Arbitration has worked pretty well between stockbrokers and their customers. They make sense where our brains are miswired to make a disinterested decision (For more on this read Predictably Irrational by Dan Ariely. I could even see that nursing home wrongful death cases might qualify.

Arbitration makes me uncomfortable in arm's length consumer transactions, especially when the consumer is expected to pay in the low four figures or above in advance for the arbitrators and must \ additionally a lawyer who knows about arbitration and the subject matter of the dispute. Often the location is very convenient for the business (in a town where one of their main offices are) and very inconvenient for the claimant who, along with counsel,  might have to make multiple cross-country trips.

Arbitration can burden a claimant with high costs and strip a claimant of many of the protections of the constitutions (federal and state), statutes (federal and state), and procedures of courts- arbitration of manufactured housing disputes, workplace discrimination, software license agreements, etc. Furthermore, these contracts are often contracts of adhesion.  Don't agree to arbitration? Well, then no mobile home for you, or job, or use of vital software.

Notwithstanding all that, if arbitration is sometimes advisable, I am sympathetic with courts. like the one here in Clark, making it very difficult to weasel out of arbitration agreements, It would not take  very many exceptions to make the FAA a dead letter.

Friday, May 12, 2017

One spouse might get a large discretionary bonus each year, based in part on good work done during the community property period. Other spouse gets what?

Miguel Angel Loya had a job in which he got a sizeable bonus every Spring. He and his wife Leticia B. Loya were getting a divorce and executed a mediated settlement agreement dividing their property. They did this shortly before he got one of his bonuses.When it came, Miguel wanted it, and Leticia said that it wasn't in the property division. The trial court agreed with Miguel, saying, among other things, that it had already been divided in his favor as his future income.
Leticia appealed to the 14th Court of Appeals where Justice Sharon McCally (one of my very favorite classmates in law school)
a majority opinion for herself and for Justice William J. Boyce
 favoring her. Chief Justice Ms. Kem Thompson Frost 
dissented, agreeing with the husband. The husband took up the case to the Supreme Court of the State of Texas, where a unanimous court-- their opinion written  by Justice Debra Lehrmann
 found for the husband.
The lesson-- write those MSAs very carefully. Texas state appeals justices will say that a thing is in MSA rather than develops rules that open up their finality.

Monday, May 8, 2017

Trial Court Admits Expert Testimony, or Not, at Its Discretion; Attorneys' Fees Must Be Segregated between Fee-Recovering and Non-Fee-Recovering Causes of Action

Beaumont Court of Appeals Chief Justice Steve McKeithen, writing for a panel including Justices Charles Kreger and Hollis Horton withdrew an earlier opinion in State Farm Lloyds v. Webb, No. 09-15-00408-CV. Webb sued State Farm Lloyds for breach of contract and unfair settlement practices. State Farm attacked the admissibility of a plaintiff's expert's testimony. Beaumont's Ninth Court of Appeals finds that admission of the testimony was not an abuse of discretion. They found that Webb could not recover extra-contractual damages beyond the policy benefits for his claim under the Insurance Code because he failed to demonstrate damages independent from the loss of the benefits. They concluded that the evidence did not enable reasonable and fair-minded people to find that State Farm engaged in a deceptive act or practice. And, following from that, denied extra-contractual damages. In the next issue, State Farm offered a field note from one of their adjusters, which the trial court would not admit. The panel found that even if State Farm were right, and that the note should have been admitted, that exclusion would not have changed the verdict, especially since evidence making the same point had been admitted. State Farm complained that cross-examination of State Farm's corporate representative-- also an adjuster-- as to the effect in this action of an unrelated Texas Supreme Court case in which State Farm was found to have acted in bad faith. The panel said that this issue was moot since it had struck the extra-contractual damages. As to Webb's attorneys' fees, it was held that he needed to segregate recoverable attorney’s fees-- the contract-breach fees- from the Insurance Code fees for claims that they lost on appeal, and which are unrecoverable. Tha appeals court rejected Webb's claims that:
  1. Taking five percent out of the total contingent fees adequately segregated the two types of action, and
  2. In this case, generally, the legal work on one cause of action was inextricably intertwined with the work on all the others, and that under such circumstances, segregation was not required.
The appeals court remanded the case to the trial court to get the different attorneys' fees amounts segregated, and for the amount attributable to the common law tort actions to be removed.

We often think over here that Texas Republican appeals courts are too easy on insurers in unfair practices cases, but in this case, I just don't find any of the horrors that I often read about in case reports and remember from my time clerking in a law firm that often accused insurers of unfair practices, and, at least once represented an insurance company in conservatorship against an abusive insured. This appears to have been a genuinely close case, but which, in the end, the courts overturned the insurer's in-house finding that it lacked liability. Surely the delays attended by all the insurer's investigations were frustrating to Mr. Webb, but it seems that all the insurer did, in this case, was to recheck the various changes of the claims, with adjusters suited to those changes.

This case should also remind contingent fee trial lawyers bringing-- as they should-- all the proper claims they can think of-- to keep time records pre-segregated to the different causes of action. If you're suing State Farm Lloyds with a number of causes of action-- some of which recover attorneys' fees and others which do not-- in Beaumont Texas you should know that State Farm is likely to fight your fees at trial and-- if you are successful at trial-- on appeal (No Democrat appellate justices for you at all) you should start planning your strategy for maximizing your fees, before or only shortly after you file the suit. Real-time time records contemporaneously segregated are much more credible than after-the-fact time records. I understand the argument that doing this might end up cutting your fees at the early part of the suit, but, as a practical matter, you're likely never getting cuttable fees anyway. To think otherwise is to be in denial.

State Farm Lloyds v. Webb, No. 09-15-00408-CV, (Tex. App.-- Beaumont, May 4. 2017, no pet. h.)

Sunday, March 12, 2017

Should the CCA Apply a Standard Currently Being Reviewed by SCOTUS?

Today's case is Us Carnell Petetan, Jr. v. State of Texas, ____ S.W.3d _____, No. AP-77,038, (Tex. Crim. App. Mar. 8, 2017). Petetan was convicted and sentenced to death in the 19th Judicial District in Waco. A CCA appeal is automatic.
The Court's opinion was written by Presiding Judge Sharon Keller and joined by all the judges except Judge Elsa Alcala, who wrote a dissent on a single issue-- that Petetan's automatic appeal as to whether or not he had too low an I.Q. to be executed was not ripe for decision, because Moore v. Texas No. 15-797 (pet. granted June 6, 2016, argued Nov. 29, 2016).had been accepted by the Supreme Court of the United States and argued as to whether Texas’s legal standard for determining intellectual disability violates the Eighth Amendment’s prohibition against the execution of intellectually disabled people. She said that SCOTUS's decisions in Atkins v. Virginia 536 U.S. 304 (2002) and Hall v. Florida, 134 S. Ct. 1986 (2014) signal that any assessment of intellectual disability must be informed by, and cannot be untethered from, the current medical diagnostic framework for assessing intellectual disability, but this Court’s standard in Ex parte Briseno, 135 S.W.3d 1, 4-5 (Tex. Crim. App. 2004). has strayed from that requirement.
The majority held that that there was sufficient evidence to find that Petetan intentionally killed his wife while he was kidnapping his wife and her daughter.

Friday, February 10, 2017

Are There Any Situations in Which a Civil Litigant Has a Right to Appointed Counsel in a Texas State Court?

We're not talking here about criminal cases. We're not talking here about federal cases. Though Texas juvenile proceedings are designated as civil instead of criminal, the criminal counsel appointment rules apply.  Sexually violent predator civil commitment is supposed to be civil-- it may oversimplify to say that the criminal counsel appointment rules apply (a criminal defendant has to be competent to stand trial, an SVPCC respondent does not, and such a person can have a guardian ad litem)  and in Texas civil proceedings, except for a very few statutory exceptions, the default rule is that civil litigants do not have a right to appointed counsel. 

 In one in a million cases, a judge might appoint counsel for an unrepresented party-- there is no budget for this kind of thing, but a judge might ask a lawyer buddy to take a case on a pro bono publico basis. 

Let's start with regular old civil lawsuits, money or property or injunction suits.

Now, though, appointments might come for minors or adult incompetents and have to be paid for by one, some, or all of the parties. 

But indigent parents in state-initiated proceedings to terminate a parent's rights have the right to counsel, and courts have the duty to inform the indigent parents of this right.

Saturday, February 4, 2017

Plastic Disks No Longer Routine for Appellate Records

Now attorneys-in-charge can get access to documents in their appeals straight from the website of the relevant appeals court, including clerk's records and court reporter's records. Now appellate counsel won't have to get the record from a trial court clerk or an appeals court clerk. Many hours of time will be saved. Some people have complained that one has to sign up one appeals court at a time, but there is a way using a control key to sign up for all the ones you need. The Fourth Court of Appeals (San Antonio) and the Thirteenth Court of Appeals (Corpus Christi and Edinburg).have not adopted the portal.
As files became electronic, it seemed crazy to have to get a pony disk from a live person, often far out-of-town,
You know how your parents tell you how difficult it was to get to school when they were kids. Now, when you are a few decades older you will be able to tell baby lawyers that you actually had to arrange for plastic disks to be gotten to you, and then returned, and they will vacantly gaze at you as a true relic of the dark ages.
(When I was a law clerk, the word processor they had me use was bigger than a kitchen stove, and to start, the screen would roll up the CRT to look like a sheet of paper, so as not to frighten the legal secretaries who were the initial users of these monsters. Personal computers weren't used in the office, and email was extremely rare. There was no Westlaw or LexisNexis or anything like them in the office. Worker's comp cases could be tried. Treble damages and attorneys' fees were mandatory in deceptive trade practice act cases. And practically all the statutory hedges against plaintiffs' getting their actual damages hadn't been built yet. The Health Care Liability Act was just getting started.)

Saturday, January 21, 2017

Former Assistant Attorney General Appointed to Empty Dallas State Appeals Court Seat

Jason Boatwright, a former assistant attorney general who worked closely with Governor Greg Abbott when Abbott was Texas Attorney General, has been named to Dallas's state Fifth Supreme Judicial District Court of Appeals. He replaces David Lewis who resigned in lieu of discipline for alcoholism and other mental health problems. Boatwright was chair of the opinions committee of the AG's office. Texas officials may ask the Attorney General to give legal opinions relating to issues in their work (Since AGs are not judges, they may give advisory opinions,) These opinions do not have force of law as published opinions of a court, but (1) they can be gotten much faster than an appeals court opinion, and (2) it gives legal cover to the requester; it may turn out that a court finds an AG opinion wrong, but following that opinion will innoculate the requester from an accusation of bad faith or criminal intent.

Boatwright's professional history is mostly out of Austin, but he's been practicing a few years in Dallas.

Wednesday, January 4, 2017

How should Texas Constitution, Article I, Section 11b Be Read with Federal Due Process Standard?

Ex parte Heath Shires, No. 02-16-00348-CR, (Dec. 29, 2016), a ruling on a pre-trial writ of habeas corpus by Fort Worth's Second Court of Appeals, seems to me to be a good candidate to get to the Court of Criminal Appeals. The appellate panel is all-female: Justice Lee Ann Dauphinot, Justice Lee Gabriel, and Justice Bonnie Sudderth. Justice Sudderth writes the majority opinion. Justice Dauphinot dissented.
Shires is indicted on four sex offenses against a minor October 14, 2014. Two of his bail conditions are that he is not supposed to drink alcohol nor is he supposed to commit another offense. He is arrested for felony DWI September 4, 2016. Two of his bond conditions are that he is not supposed to drink alcohol and that he is not supposed to drive any vehicle that does not have an alcohol interlock. On September 6, 2016, State says Shires's bond for the four earlier offenses is too low. 
There was a hearing on raising the bond amount on the old charges Sept. 6, 2016. the parties stipulated that Shires had violated the bond conditions, but Shires argued that his bond should not be revoked, but that an alcohol monitor should have been attached to him. He also argued that Tex. Const. art. I, sec 11b, violated the 14th amendment of the U.S. Constitution. The trial court rejected the challenge and allowed the hearing on it to make a record for the habeas writ. 
Shires challenges sec 11b's federal constitutionality as applied to him. The majority rejects Shires's claim that federal precedent required that every trial court to apply a clear and convincing evidence standard, nor requires each trial court to consider
if additional bond conditions may adequately assure the safety of the community
or the victim. 
Justice Dauphinot submitted that 11b had to be applied in light of the federal due process standard, and that the appeals court should have reversed and remanded to the trial court with instructions as to what federal due process precisely required (She appeared to me, to think that Shires, at least in part, had the right idea.
The State has the burden of proving the allegations of its motion. The trial
court must be convinced by the evidence that the State has borne its burden.
The issue is not whether some appellate court can, by speculation and reading
between the lines, cobble together enough possibilities to support the State’s
allegations and to support a determination that the detainee must not be released
under any conditions because no conditions exist that will reasonably protect the
public. The record must reflect evidence from which the trial court can make the
legally mandated determinations, and the trial court must actually make the

necessary determinations.

Justice Dauphinot aged out of her position at the end of 2016 and has had to retire. I can't really imagine her getting that old; she always seemed to me to be younger in spirit than people many years her junior. For what it's worth, I liked her and am going to miss her.