THE “ANDERS BRIEF”— IT’S NOT JUST FOR CRIMINAL APPEALS ANY MORE

In re N.A., a child
Dallas Court of Appeals, No. 05-15-01220-CV (January 25, 2016)
Chief Justice Wright and Justices Fillmore (Opinion) and Stoddart

Ken Carroll

Earlier this week the Dallas Court of Appeals followed the procedures established in Anders v. California, 386 U.S. 738 (1967), to affirm an order terminating parental rights in the face of the mother’s baseless appeal. The decision is the latest reminder that Anders is not confined to the criminal context in which it was born.

In Anders, the United States Supreme Court fashioned a protocol to balance the right of a criminal defendant to appeal a conviction against the ethical obligations of appointed counsel and the attendant considerations of judicial economy and efficiency with respect to a frivolous appeal. Pursuant to Anders, if a criminal defendant insists on pursuing an appeal, but appointed counsel believes that appeal to be without merit, counsel must thoroughly review the record and the law, file a brief detailing that review and explaining why an appeal would be frivolous, and move to withdraw as counsel. Counsel must provide a copy of the brief and motion to the client. Faced with an “Anders brief,” the appellate court undertakes its own review of the record and law to determine whether the appeal is wholly frivolous. It must also afford the client the opportunity to respond, pro se or otherwise. If, after all that, the court finds the appeal is not wholly frivolous, the appeal will proceed and the appeals court will deny the motion to withdraw or appoint substitute counsel. But if the court agrees the appeal has no merit, as is usually the case, it will grant counsel’s motion to withdraw and affirm the decision of the court below.

“Anders is firmly embedded in Texas criminal jurisprudence.” In re D.A.S., 973 S.W.2d 296 (Tex. 1998). But in D.A.S., the state’s Supreme Court extended Anders to juvenile commitments, which, though “quasi-criminal in nature,” are “classified as civil proceedings.” Id. Courts of appeals across the state have applied Anders to involuntary mental health commitments, e.g., State ex rel. L.E.H., Jr., 228 S.W.3d 219 (Tex. App.—San Antonio 2007, no pet.), and to terminations of parental rights, e.g., In re D.D., 279 S.W.3d 849 (Tex. App.—Dallas 2009, pet. denied). The Dallas Court’s decision this week in In re N.A. reminds us that the Anders procedures will apply to most, if not all, situations in Texas where an appointed counsel’s client insists on pressing what counsel deems to be a meritless appeal.

$48,000 PER HOUR SOUND ABOUT RIGHT?

Shamoun & Norman, LLP v. Hill
Dallas Court of Appeals, No. 05-13-01634-CV (January 26, 2016)
Justices Bridges (Opinion), Francis, and Myers

Kelli Hinson

Oral contingency fee agreements are not enforceable under the Texas Government Code, but the Dallas Court of Appeals recently held that evidence of such an alleged oral agreement can be considered to prove the reasonable value of the attorneys’ services for the purpose of quantum meruit. The Court also held that an award amounting to $48,000 per hour is not necessarily excessive.

NEW TRIAL SET ASIDE BY MANDAMUS

In re State Farm Mutual Automobile Insurance Company
Fort Worth Court of Appeals, No. 153-258960-12 (January 26, 2016)
Chief Justice Livingston and Justices Gardner (Opinion) and Gabriel

Lyndon F. Bittle

The Fort Worth Court of Appeals granted mandamus to set aside a new-trial order, applying the new standards laid down by the Texas Supreme Court in Toyota Motor Sales and United Scaffolding. After a fender bender with an underinsured driver, Scott Newell asked his insurer, State Farm, to pay under its underinsured motorist coverage for neck surgery, significant pain, and other injuries he attributed to the accident. State Farm paid part of his claim, and he received some compensation from the other driver’s insurer. Unsatisfied, Newell sued State Farm for additional damages. After trial, the jury awarded Newell $198 for treatment he received at a walk-in clinic the day after the accident, but nothing for the surgery or other medical expenses. The jury also awarded no damages for physical pain, impairment, mental anguish, or lost wages. Because the damage award was more than offset by money Newell had already received from the insurers, the trial court entered a take-nothing judgment. Newell filed a motion for new trial, which the trial court granted, on the ground that the jury’s finding that Newell incurred no compensable pain and suffering was against the great weight and preponderance of the evidence and manifestly unjust in light of the jury’s finding that he had sustained a physical injury in the accident.

State Farm sought mandamus to set aside the new trial order. The Fort Worth Court of Appeals noted that Supreme Court requires that the trial court’s order articulate clear, facially valid reasons to set aside the jury’s verdict, and that those reasons be supported by the record. The appellate court held the lower court’s order satisfied the first prong; it provided an understandable, reasonably specific, and facially sound reason for setting aside the jury’s verdict. The second prong, whether the trial court’s stated reasons were correct, required reviewing the entire record under a factual sufficiency analysis. The Court of Appeals noted, “Matters of pain and suffering are necessarily speculative, and it is particularly within the jury’s province to resolve these matters and decide the amounts attributable thereto.” After analyzing the conflicting medical opinions and evidence of Newell’s previous medical treatment and activities following the accident, the Court of Appeals held the jury could reasonably have found he had not suffered ongoing pain caused by the accident. The trial court’s reasons for granting the motion for new trial were therefore invalid, and it was directed to reinstate the original take-nothing judgment.

HOW TO WIN WITHOUT SHOWING UP

Chen v. Nguyen
Dallas Court of Appeals, No. 05-15-00077 (January 21, 2016)
Justices Francis, Evans (Opinion), and Stoddart

Kelli Hinson

The trial court in this case followed the time-honored tradition: “You must be present to win.” But the Dallas Court of Appeals reversed and held: “Not always.”

Mike Chen obtained a judgment against Chinh Quoc Nguyen on September 26, 2002. No writ of execution was issued, and so the judgment became dormant on September 26, 2012. In August 2014, Chen filed a petition to revive the judgment. Such a motion should be granted if filed no later than the second anniversary of the date the judgment became dormant. TEX. CIV. PRAC. & REM. CODE § 31.006. Chen did not appear at the hearing, however, and so the trial court denied the petition.

The Dallas Court reversed, holding that Chen had satisfied the statutory requirements to revive the judgment and the trial court therefore had no discretion to deny the petition simply because Chen failed to appear.

ZEALOUS ADVOCACY OR AIDING AND ABETTING?

Highland Capital Management v. Looper Reed & McGraw, P.C.
Dallas Court of Appeals, No. 05-15-00055 (January 14, 2016)
Justices Lang, Brown, and O’Neill (Opinion)

Kelli Hinson

The Dallas Court of Appeals confirmed that “attorney immunity” gives attorneys wide latitude to zealously represent their clients without fear of liability to the opposing party. Looper Reed represented a former employee of Highland Capital in an employment dispute. In the midst of that representation, Highland Capital sued the firm, alleging it had wrongfully copied and analyzed confidential documents it knew to be stolen by the employee and had engaged in extortion by threatening to disclose the confidential information and disparage Highland Capital unless Highland paid the client a certain amount of money.

Looper Reed filed a Rule 91a Motion to Dismiss on the grounds of attorney immunity, and the trial court dismissed Highland’s claims for theft, breach of the duty of confidentiality, conversion, tortious interference, and conspiracy to commit theft, extortion, slander, and disparagement. The court denied the motion to dismiss as to the claim for aiding and abetting breach of fiduciary duty, but later granted Looper Reed summary judgment on that claim.

Highland Capital appealed, arguing that Looper Reed’s conduct “went well beyond” discharging its duties in representing its client and that, therefore, attorney immunity did not apply. The Court of Appeals disagreed, however, relying on the recent Texas Supreme Court opinion in Cantey Hanger, LLP v. Byrd, 467 S.W.3d 477, 481 (Tex. 2015). The Court noted that if “the type of conduct alleged falls squarely within the scope” of the attorney’s representation of a client, then the conduct is protected, regardless of the merit or propriety of the conduct. “[E]ven wrongful or fraudulent conduct may fall within the scope of client representation,” the Court said. Conduct unrelated to client representation, such as engaging in a fraudulent business scheme or assaulting opposing counsel, would not be protected. Here, the type of conduct alleged—acquiring and reviewing documents, making settlement demands, and threatening consequences if demands were not met—fell squarely within Looper Reed’s representation of its client. The doctrine of attorney immunity therefore barred Highland Capital’s claims.

The Court did note, however, that where attorneys engage in misconduct, remedies exist to discourage and remedy such conduct, including sanctions, contempt, and attorney disciplinary proceedings. But the Court made no comment on whether such measures would have been appropriate here.

NO STANDING, NO JURISDICTION, NO CASE, NO KIDDING

Shore Chan Depumpo LLP v. Thrasher
Dallas Court of Appeals, No. 05-14-0697-CV (January 13, 2016)
Justices Fillmore, Stoddart (Opinion), and O’Neill

Ken Carroll

In a case with a labyrinthine procedural history—spanning several years, cases, and courts—the Dallas Court of Appeals affirmed dismissal for lack of jurisdiction on two separate grounds. A law firm, SCD, entered into a settlement with Thrasher that purported to release claims against SCD’s clients, as well; that release presumably extended to Mandel, a client of SCD, although he was not expressly named in the agreement. In May 2013, the 298th District Court entered a judgment finding the settlement agreement binding and enforceable. Meanwhile, in the midst of an ongoing series of state-court claims and counterclaims between Mandel and Thrasher, Mandel filed for Chapter 11 bankruptcy protection, and a trustee was later appointed and the matter converted to a Chapter 7. As Thrasher continued to press his claims in Mandel’s bankruptcy, Mandel and SCD filed suit in the 193d District Court, seeking a declaration that the prior judgment of the 298th District Court regarding the settlement agreement barred Thrasher’s pursuit of his claims against Mandel. The trial court dismissed for lack of jurisdiction, and the court of appeals affirmed.

First, the Court said, because Mandel had filed for Chapter 11 protection, any claims belonged to his bankruptcy estate—even those that accrued post-petition—and therefore only the trustee, and not Mandel, had standing to pursue those claims. Second, “[a] declaratory judgment action may not be used to collaterally attack, modify, or interpret a prior judgment.” Consequently, suits, like this one, “seeking to interpret judgments of another court are barred even when the claimants … merely [seek] to clarify their rights under it.”

THE OTHER SHOE DROPS: NO FIDUCIARY DUTY OWED BY RUPE SHAREHOLDERS

Ritchie v. Rupe
Dallas Court of Appeals, No. 05-08-00615-CV (January 12, 2016)
Justices Lang-Miers, Stoddart (Opinion), and Whitehill

Lyndon F. Bittle

On remand from the landmark Texas Supreme Court Ritchie opinion that reversed a judgment for “shareholder oppression” and eliminated that cause of action (see 2014 Sua Sponte post), the Dallas Court of Appeals completed the dismantling of the minority shareholder’s judgment. The Supreme Court remanded for consideration of an issue the Dallas Court had not addressed in its original opinion (see 2013 Sua Sponte post)—whether the judgment could be affirmed on the jury’s findings that a “relationship of trust and confidence” existed between the shareholders of the closely held Rupe Investment Corporation and that the defendants had breached fiduciary duties arising from that relationship.

The Court first declined to consider appellants’ argument that the Supreme Court’s opinion had rendered a sentence in the jury charge erroneous as a matter of law—“For a majority to owe a fiduciary duty to minority shareholders, you must find that the majority shareholder dominates control over the business.”—because they had not objected to that sentence at trial. However, the Court held, a finding of “domination and control” alone would not supplant the threshold requirement that the relationship be one of trust and confidence. The Court then reviewed and applied the well-established principles governing the formation of an informal fiduciary relationship in Texas. Holding no evidence supported finding a fiduciary relationship in this situation, the Court reversed and rendered a take-nothing judgment.

(Justice Moseley, who wrote the original opinion, and Justice FitzGerald had both retired in the intervening years, and were replaced on the panel by Justices Stoddart and Whitehill.)

ORDER INCREASING CHILD SUPPORT AND AWARDING APPELLATE FEES NOT “SMALL CHANGE” FOR DAD

In re Moore
Dallas Court of Appeals, No. 05-14-01173-CV (January 7, 2016)
Justices Lang-Miers (Opinion), Brown, and Schenck

Carmen Eiker

In this SAPCR case, Father appealed the trial court’s order modifying child support and awarding retroactive child support. Father also challenged by mandamus an award of conditional appellate attorney’s fees. The Dallas Court of Appeals consolidated the two matters and rejected both challenges.

The trial court found Mother had met her burden to prove a substantial and material change of circumstances, justifying a modification of child support, as her income had steadily decreased since the divorce while Father’s had steadily increased. This was true even though Mother’s decrease in income was the product of a fluctuating bonus arrangement that had existed, and arguably been taken into account, at the time of the divorce and original award.

Pursuant to Texas Family Code § 102.009, the trial court also awarded Mother conditional appellate fees of $52,500, subject to possible remittiturs of up to $50,000 if various steps on appeal did not occur (e.g., no oral argument). Father attempted to challenge the fee award by mandamus, but the Court of Appeals held mandamus was not the appropriate vehicle for attacking the attorney’s fees award in a temporary order pending appeal. Because the fee award was entered after final judgment, it was not an interlocutory temporary order, the appeal of which is prohibited by Texas Family Code § 102.009. The Court therefore found it had authority to review the temporary order as part of the appeal, and mandamus therefore was not necessary. Father argued that the testimony of Mother’s attorney as to his general knowledge of the work necessary for the appeal and a summary exhibit of the work and fees were not sufficient to support the fee award. The appeals court disagreed, noting that the summary exhibit was introduced without objection, and further observing that, “[u]nder the traditional, non-lodestar method of proving up the reasonableness of attorney’s fees,” specific testimony as to the number of hours worked or hourly rate of the attorney is not required for a court to award fees. Instead, the presence or absence of such information goes to the weight of the evidence.

SLIP AND FALL SLIP-UP

Phillips v. Jones
Dallas Court of Appeals, No. 05-15-00005 (January 7, 2016)
Justices Lang-Miers (Opinion), Evans, and Schenck

Kelli Hinson

Both the Texas Supreme Court and the Dallas Court of Appeals have recently explained that a slip-and-fall case isn’t transformed from a simple premises liability claim to a health care liability claim, subject to the expert-report and other requirements of Civil Practice & Remedies Code Chapter 74, just because the accident occurred in a medical facility. (See previous blog posts here and here.) But in Phillips, the Dallas Court found that slipping off the step of an examining room table does give rise to a health care liability claim.

The plaintiff argued her claim was not subject to Chapter 74 because it was “not based upon any medical care provided or not provided by the Appellees” and was not “based upon any departure from accepted standards of medical care directly related to health care provided to [her] by the Appellees.” The Court disagreed, stating that the pivotal issue is whether the claim “implicate[s] the defendant’s duties as a health care provider, including its duties to provide for patient safety.” The Court noted that the examination room where the fall occurred is not “accessible by the public,” that the physician uses the examination room to examine patients who have sought the physician’s medical services, and that the examination table is an “instrumentality integral to the rendition of medical services in a physician’s examination room.” The Court distinguished recent cases in which accidents in hospital elevators, parking lots, and lobbies were held not to have a “substantive nexus” with the provision of health care.

The plaintiff’s claims, therefore, were health care liability claims, and the trial court was correct in dismissing those claims because of plaintiff’s failure to tender an expert report as required under Chapter 74.

TWO RELATED CASES PROVIDE A YEAR-END PRIMER ON LIBEL AND THE TEXAS ANTI-SLAPP STATUTE

Tatum v. Hersh
Dallas Court of Appeals, No. 05-14-01318-CV (December 30, 2015)
Justices Lang, Evans, and Whitehill (Opinion)

Tatum v. The Dallas Morning News, Inc.
Dallas Court of Appeals, No. 05-14-01017-CV (December 30, 2015)
Justices Lang, Fillmore, and Whitehill (Opinion)

Ken Carroll

A single tragedy gave rise to a series of events that led to two lawsuits and two expansive opinions by the Dallas Court of Appeals, providing insight into the application and operation of Texas libel law and the Texas anti-SLAPP statute, the Texas Citizens Participation Act, in the context of newspaper articles and their formulation.