In re McReynolds
Dallas Court of Appeals, No. 05-15-01254-CV (October 11, 2016)
Justices Bridges, Lang-Miers, and Whitehill (Opinion)
The Dallas Court of Appeals affirmed denial of a request that a district court issue a “sex change order” to judicially “change [the] Petitioner’s gender identifier from female to male.” The appellate court’s decision rested entirely upon the statutory and procedural approaches chosen, and not chosen, by the Petitioner.

Petitioner alleged he was “transgendered by surgical reconstruction,” and asked the district court to issue an order changing his sex or gender “identifier” to reflect that. He relied exclusively on Family Code § 2.005(b)(8), which delineates the documents a county clerk may accept as proof of the age and identity of each applicant for a marriage license (even though petitioner was not attempting to apply for a marriage license). Specified among those documents is “a court order relating to the applicant’s name change or sex change ….” Petitioner argued this implicitly authorized Texas courts to issue such “sex change orders.”

The Court of Appeals disagreed. True, courts can issue “name change orders,” but Chapter 45 of the Family Code establishes a detailed procedure for doing so. By contrast, no Texas statute establishes a procedure for obtaining a “sex change order.” Other states, such as Oregon, do, and sex change orders from those other jurisdictions might fulfill the requirements of § 2.005(b)(8), such that the statute’s reference to such orders is not meaningless. But § 2.005(b)(8)’s mere mention of “sex change orders,” the Court held, does not provide authority for a Texas court to issue such orders.

All that said, the Court hinted at other avenues the Petitioner might pursue. For example, Petitioner had not filed a claim under the Declaratory Judgments Act. Nor had he invoked the administrative procedure established in Health & Safety Code § 191.028 for correcting or amending his birth certificate, one of the few concrete items of relief specified by the Petitioner. The efficacy or viability of these unpursued alternatives, however, was left for another day.


Convention taught generations of us to number the pages of the preliminary sections of our briefs in “romanette” (lower case Roman numerals, i, ii, iii, iv, etc.) and the substantive sections in Arabic (1, 2, 3, etc.). This was never an exact science. Do you include the cover as an implied page “i” and begin numbering with page “ii” or start with “i”? What exactly is a “preliminary” item to be numbered in romanette, anyway? Tables of contents and authorities? Sure. The list of interested persons? Okay. Statements regarding jurisdiction and oral argument? Maybe. Issues presented or statement of the case? Hmmm, …. The practical rule of thumb seemed to be that, whatever the clerk was going to include in assessing your page or word limit would be numbered in Arabic, with everything before that numbered in romanette, as if to say subliminally, “Pssst, these don’t count.”

But with the advent of electronic filing and with briefs increasingly being read on tablets and computer screens, the use of two numbering systems—romanette and then Arabic—has become more than imprecise; it’s a source of confusion. In most, if not all, electronic systems, PDF and otherwise, all pages in a document are counted consecutively from the very beginning to the very end—including the cover, any tabs or dividers, and the pages of any attachments or appendix made part of that single document. In the federal PACER system, this unitary first-page-to-last-page numbering system even appears in the file-stamp legend at the top of each page of your brief. Anyone who has viewed a brief, treatise, or article in PDF knows the frustration of trying to translate the page number in the table of contents to the PDF page number on the screen, because, well, they don’t match. Bookmarks can ameliorate the problem, but won’t eliminate it. How much simpler would it be, how much easier for judges and clerks, if we all counted the covers of our briefs as page 1—as PACER and PDFs already do—and then started showing the numbering on the next page as page 2, carrying those numbers forward through the very end of our submission, including any tabs and attachments.

Appellate lawyers are known for being prickly and prissy about things that pass under the radar of normal folk. (Try talking fonts with a trial lawyer.) And maybe fussing about page numbering is just another example. But anything you can do to make your work clearer and easier to use would seem to be worth considering. So, go ahead, rid yourself of romanette. Those clerks are sharp. They’ll still be able to tell which words count against the limit and which don’t.


At the recent annual meeting of the Appellate Section of the State Bar of Texas, Marvin Sloman—one of the founders of Carrington Coleman Sloman & Blumenthal—was inducted into the Texas Appellate Hall of Fame. The honor is curated and awarded jointly by the State Bar Appellate Section and the Texas Supreme Court Historical Society. “The Texas Appellate Hall of Fame recognizes distinguished judges, attorneys, and court personnel who have made unique contributions to the practice of appellate law in Texas from the mid-1850s to the present.” Marvin became only the fourth private practitioner named to the Hall, joining such notables as United States Supreme Court Justice Tom Clark and longtime Texas Supreme Court Chief Justices Robert Calvert and Joe Greenhill.

In his 58-year career, Marvin appeared scores of times before the Texas Supreme Court and the intermediate appellate courts of Texas and of the United States. He argued twice before the United States Supreme Court, winning both times. Marvin was asked by the judges of the Fifth Circuit Court of Appeals to help form the Fifth Circuit Bar Association and became its first president. He also served as Chairman of the Appellate Practice and Advocacy Section of the State Bar of Texas, as well as Chairman of the State Bar’s Corporation, Banking, and Business Law Section.

Marvin was a man of many interests, most of them intense, and he loved to debate the finer points of everything around him. His curiosity led him to carefully study and gain mastery of a variety of subjects, including camping, fishing, hunting, carpentry, jazz of the 1920s and ‘30s, and the art of a good joke. In everything, Marvin sought the best and to be the best. A significant point of pride was his single-handed construction, board-by-board and nail-by-nail, of a hexagonal country home outside of Winnsboro, Texas, referred to as “Homebrew”—a creation in which he took as much joy and pride as in any brief he ever wrote.

Marvin brought to the practice of law a remarkable combination of intelligence, wit, humor, superb analytical and writing skills, attention to detail, and commitment to excellence. Those qualities, and his willingness to share them with young lawyers along the way, rightly led to his inclusion with other appellate pioneers in the Texas Appellate Hall of Fame. In support of Marvin’s nomination, Fifth Circuit Judge Carolyn King wrote, “in a circuit in which we are blessed with many excellent appellate lawyers, he was the best, a real gift to us and to his clients.” And, we would add, to his colleagues.


Violating a TRO to destroy the subject matter of the lawsuit justifies death penalty sanctions and a final judgment awarding contempt damages of almost $900,000, according to the Dallas Court of Appeals.
Altesse Healthcare Solutions, Inc. v Wilson
Dallas Court of Appeals (August 23, 2016)
Justices Lang-Miers, Evans (Opinion), and Brown
Allen and Becky Wilson agreed to sell their home healthcare business to Altesse in June 2014 for $800,000, with the first payment due in October. Rather than make the first payment, Altesse sued the Wilsons in federal court. The Wilsons then sued Altesse for fraud and breach of contract in state court, and requested injunctive relief. After a conference in chambers attended by counsel for both parties, a Collin County district court entered a temporary restraining order on December 17, 2014, and scheduled a temporary injunction hearing five days later. The TRO required Altesse to return all company assets and records to the Wilsons within three days. On December 19, Altesse filed an emergency motion to set aside the TRO and—one hour later—a notice of removal to federal court. The state court therefore never heard either the emergency motion or the application for a temporary injunction. At the end of January 2015, the federal court returned the case to state court. (Meanwhile, Altesse’s original suit against the Wilsons remained pending in federal court.)

In March 2015, the Wilsons filed a motion for contempt and sanctions against Altesse, based on alleged violations of the TRO in December 2014. After an evidentiary hearing, the trial court found Altesse had failed to return any of the assets or records to the Wilsons as ordered, and had deliberately decimated the healthcare business’s assets and effectively destroyed the value of the company during the 14 days the TRO was in effect. The court entered a detailed order granting the motion and imposing a monetary sanction for contempt of court of $897,937.51 (the agreed value of the business) as well as “death penalty sanctions” making Altesse liable for all the Wilsons’ claims. That order was ultimately converted to a final judgment awarding damages in the same amount plus attorney’s fees. Altesse appealed.

The Dallas Court of Appeals affirmed, concluding the judgment satisfied the two factors required to justify any sanctions order: there must be “a direct relationship between the offensive conduct and the sanctions,” and “the sanction imposed must not be excessive,” quoting Chrysler Corp. v. Blackmon, 841 S.W.2d 844, 849 (Tex. 1992). The court also found due process was satisfied because the evidence justified a presumption that Altesse’s defenses lacked merit. Although the trial court did not specifically mention possible lesser sanctions, the appeals court concluded the trial court did not err in determining a lesser sanction would have been inadequate. Finally, the appeals court ruled the trial court did not abuse its discretion in rejecting Altesse’s arguments that it “substantially complied” or was unable to comply with the TRO because of a concern for patient safety. Given the Texas Supreme Court’s demonstrated reluctance to approve death penalty sanctions, it will be interesting to see what happens if Altesse seeks review by that court.


TXU Portfolio Management Company, LP v. FPL Energy, LLC
Dallas Court of Appeals, No. 05-08-01584-CV (August 18, 2016)
Justices Francis, Evans (Dissent), and Whitehill (Opinion)
Efforts to compensate for undelivered product do not constitute “cover” if they occur before the contract is breached. TXU Portfolio Management Company (“TXUPM”) contracted with several wind farms (the “Wind Farms”) for delivery of annual quantities of wind energy, but the Wind Farms were unable to fulfill their delivery obligations. Because TXUPM was required to meet its customers’ daily energy needs, it compensated for the lower-than-expected deliveries from the Wind Farms by purchasing energy from other sources throughout the course of the year. After a trial on TXUPM’s breach of contract claim against the Wind Farms, the jury found TXUPM suffered “market damages” of $8.9 million. But the jury also found that TXUPM had covered for the electricity the Wind Farms failed to provide. The jurors were instructed that “cover” meant “purchasing or producing electricity as a substitute for the electricity promised but not delivered under the Agreements.” Because TXUPM did not prove any “cover damages,” the trial court entered a take-nothing judgment against TXUPM.

The Dallas Court of Appeals disagreed. The Wind Farms’ delivery obligations were measured on an annual basis; so they did not breach their agreements until the year ended. Section 2.712(a) of the Texas Business and Commerce Code provides: “After a breach within the preceding section the buyer may ‘cover’ by making in good faith and without unreasonable delay any reasonable purchase of or contract to purchase goods in substitution for those due from the seller.” (Emphasis added.) An aggrieved buyer may either cover or sue for market damages, but not both. The trial court held that TXUPM’s cover activities prevented it from recovering market damages. But the Court of Appeals held that the plain language of the statute restricts “cover” to activities post-breach. In this case, TXUPM purchased additional electricity on a daily basis before the annual delivery obligations were technically breached. Because of the ephemeral nature of electricity, TXUPM did not—and indeed could not—purchase electricity after the breach to make up for the daily pre-breach shortfalls. So TXUPM’s purchases did not constitute cover, and it was entitled to the $8.9 million market damages found by the jury.

Justice Evans dissented, arguing the Court was bound to evaluate the evidence based on the definition of “cover” presented to the jury—regardless of what the “correct” definition may be. TXUPM objected to the definition at trial, but not on the grounds that it was an inaccurate statement of the law. Because the definition in the jury charge did not include the “after breach” language from the statute, Justice Evans concluded the evidence was sufficient to support the jury’s finding of cover.


Despite a thoughtful dissent by Justice Evans, a panel of the Dallas Court of Appeals has refused to recognize a Texas “patent-agent privilege” like that recently adopted by the Federal Circuit in In re Queen’s University at Kingston, 820 F.3d 1287 (Fed. Cir. 2016), or to apply that federal privilege in a state-law breach-of-contract case.

In re Silver
Dallas Court of Appeals, No. 05-16-00774-CV (August 17, 2016)
Justices Francis, Evans (Dissent), and Stoddart (Opinion)
Non-attorneys may register as “patent agents” with the USPTO and be authorized to prepare and prosecute patent applications there. The Supreme Court has held those activities “constitute[] the practice of law,” but that the Supremacy Clause bars states from prohibiting registered non-attorney patent agents from pursuing patent prosecutions on the ground they are engaged in the unauthorized practice of law. Sperry v. Florida, 373 U.S. 379, 383-85 (1963). Applying Sperry, a divided panel of the Federal Circuit earlier this year “recognize[d] a patent-agent privilege extending to communications with non-attorney patent agents when those agents are acting within the agent’s authorized practice of law before the Patent Office.” In re Queen’s University, 820 F.3d at 1302.

Silver claims he invented and owns patents for the technology in a device called the “Ziosk” that allows restaurant patrons to order meals, play games, and pay their checks from their tables. Silver and Tabletop Media, a corporation that marketed the Ziosk, sued each other in state court for breach of contract. In the course of that litigation, Tabletop sought discovery of more than 300 emails between Silver and his non-attorney patent agent who had pursued the Ziosk patents. When the trial court rejected his claim that those communications were privileged, Silver sought mandamus in the Dallas Court of Appeals.

The panel majority agreed with the district court and rejected Silver’s privilege claim on two grounds. First, it said, no patent-agent privilege exists under the Texas constitution, statutes, or court rules. And, although the Federal Rules of Evidence expressly authorize federal courts to recognize new common-law privileges, as the Federal Circuit had done in Queen’s University, intermediate appellate courts in Texas do not “declare new common law discovery privileges.” Second, even if such a privilege might apply under federal law in a dispute regarding the validity of a patent or its infringement, this case focused on state-law breach-of-contract claims; consequently, state rather than federal privilege law controls.

In dissent, Justice Evans argued that, unlike Queen’s University, this case involved not the recognition of a new common-law privilege, but the interpretation and application of the existing attorney-client privilege in Texas Rule of Evidence 503. Rule 503(b)(1)(A) insulates confidential communications to facilitate legal services between a client and a “lawyer,” which Rule 503(a)(3) defines as “a person authorized, or who the client reasonably believes is authorized, to practice law in any state or nation.” Because under Sperry a non-attorney patent agent is “authorized to practice law” in prosecuting patents, Justice Evans would have held communications between Silver and his patent agent in connection with the patent process to be covered by the Rule 503 Texas attorney-client privilege. (Justice Evans would not have extended the privilege to later communications between Silver and his patent agent regarding the Tabletop litigation, because those were not in connection with the patent process. Neither the majority nor dissent discussed whether the work-product doctrine, TRCP 192.5, might protect those communications.)

Stay tuned for further developments. Absent some agreement between the parties that moots the issue, this dispute seems likely to go another round or two in the appellate courts.


Dassey v. Dittmann
U.S. District Court, E. D. Wisconsin, Case No. 14-CV-1310 (August 12, 2016)
Magistrate Judge William E. Duffin
In a 91-page opinion linked here, a federal court in Wisconsin has granted the habeas corpus petition of one of the men featured in “Making a Murderer.” Brendan Dassey, the young nephew of primary defendant Steven Avery, has had his state-court conviction set aside because the police who interviewed or interrogated him crossed a line, causing his statements to them to be constitutionally involuntary. Although it did “not reach this conclusion lightly,” the federal court found “that this case represents the sort of ‘extreme malfunction[] in the state criminal justice system[]’ that federal habeas corpus relief exists to correct.”

The court denied Dassey’s request for relief based on the misconduct or ineffective assistance of his original counsel Leonard Kachinsky—who, among other things, allowed Dassey to be interrogated without counsel present—at least in part because of the particular legal theory Dassey’s habeas counsel elected to pursue on this issue. But the court concluded the tactics and methodology employed by the officers in Dassey’s interrogation, in the context of all the relevant circumstances, “overbore” Dassey’s free will and rendered his statements to the police involuntary, which required his conviction to be vacated. In the court’s words: “The investigators repeatedly claimed to already know what happened … and assured Dassey that he had nothing to worry about. These repeated false promises, when considered in conjunction with all relevant factors, most especially Dassey’s age, intellectual deficits, and the absence of a supportive adult, rendered Dassey’s confession involuntary under the Fifth and Fourteenth Amendments. The Wisconsin Court of Appeals’ decision to the contrary was an unreasonable application of clearly established federal law.”

The State of Wisconsin has the right to appeal this decision, and the federal court provided that if it does so, the habeas order will be stayed pending the outcome of that appeal. In the absence of an appeal, however, the order directs that the State “release Dassey from custody unless, within 90 days of the date of this decision, the State initiates proceedings to retry him.”


To obtain attorney’s fees as a sanction under TRCP Rule 13 or Chapter 10 of the Civil Practice and Remedies Code, a party must present supporting evidence at an evidentiary hearing.
Click v. Transportation Workers Union Local 556
Dallas Court of Appeals, No. 05-1-00796-CV (August 10, 2016)
Justices Francis, Fillmore, and Schenck (Opinion)
Click, Lindemann, and Martin were officers of Transportation Workers Union Local 556. The Union sued them for misappropriation of funds and breach of fiduciary duty. Click and Lindemann moved for summary judgment and, in their prayer, also sought attorney’s fees under Rule 13 and Chapter 10, asserting that the Union’s claims against them were brought in bad faith. The trial court granted their summary judgment motion and in the final judgment ordered that the Union take nothing against them. But it awarded no sanctions or fees against the Union. The Dallas Court of Appeals affirmed, reminding practitioners and parties that “Chapter 10 and rule 13 require the trial court to hold an evidentiary hearing to make the necessary factual determinations about the motives and credibility of the person signing the allegedly groundless pleading.” “Without such an evidentiary hearing,” the Court explained, “the trial court has no evidence before it to determine that a pleading was filed in bad faith or to harass.” Further, the Court said, “Motions and arguments of counsel are not evidence in a sanction hearing context.” Because Click and Lindemann had not sought or obtained an evidentiary hearing on their request for fees and sanctions, the appeals court affirmed the judgment denying that request.


CAS, Ltd. v. TM Aviation Partners, LP
Dallas Court of Appeals, No. 05-15-779-CV (August 4, 2016)
Justices Bridges (Opinion), Lang, and O’Neill
Gregory Coy, the president of CAS, was in the market for a set of used aircraft floats to pass along to an overseas client. He agreed to purchase a set from TM Aviation, which had bought them from a third party several years before but had never taken possession of them. Timothy Thompson from TM Aviation had advertised the floats as “like new” and passed along photos of the floats he had received when he originally purchased them. But he disclosed to Coy that he had never actually seen the floats, and he encouraged Coy to inspect them.

Coy decided to purchase the floats on behalf of CAS without inspecting them first and drafted up a bill of sale providing the floats were to be sold “as is, where is, … without warranties expressed or implied.” After Coy had the floats delivered, he was disappointed in their condition and sued TM Aviation for breach of contract, breach of warranty, fraud, and violations of the DTPA. The trial court entered a take-nothing judgment in favor of TM Aviation.

CAS appealed, arguing it was fraudulently induced to enter into the “as is” contract. A seller “cannot have it both ways: he cannot assure the buyer of the condition of a thing to obtain the buyer’s agreement to purchase ‘as is,’ and then disavow the assurance which procured the ‘as is’ agreement.” So, whether an “as is” clause should be given effect is based on the totality of the circumstances, including whether the “as is” clause was boilerplate or an important basis of the bargain, the relative sophistication of the parties, and other representations made by the parties. Here, the Court focused on the facts that the parties were both sophisticated businessmen with years of experience buying and selling aviation parts and that CAS was the party who drafted the bill of sale, which included the “as is” provision.

The Court rejected CAS’s argument that TM Aviation’s description of the floats as “like new” was a material misrepresentation. Distinguishing a case in which the Texas Supreme Court held that advertising a boat as “just like new” was an actionable misrepresentation, the Dallas Court concluded that “just like new” means “exactly like new,” whereas “like new” merely means “in very good condition.” In light of the fact that both parties in this case understood the floats were over 30 years old, the Court held the phrase “like new” was “more of a vague representation constituting a mere opinion” and was not sufficiently definite to constitute a material misrepresentation. So CAS could not avoid the “as is” clause, and the take nothing judgment was affirmed.


Lesson for today: Update your insurance forms, and when you do, follow the rules to the letter.
Switzer v. Vaughan
Dallas Court of Appeals, No. 05-14-00811-CV (July 27, 2016)
Justices Francis, Lang-Miers (Opinion), and Myers
Eric Switzer worked for the Post Office. He didn’t want his ex-wife to benefit from his life insurance policy through the Federal Employees’Group Life Insurance (“FEGLI”) program. So, in 2008 he changed the designated beneficiary on that policy to Kay Vaughan, a co-employee he was then dating. Alas, his relationship with Kay withered and, about a year later, Eric married Patricia. Eric then completed a form to change the beneficiary on his FEGLI policy again, to his new wife, Patricia. Mostly. Unfortunately, he failed to check one required box. The Post Office apparently returned the form to him to be completed or corrected, but he never did so. We know this because Patricia later found the original form among Eric’s papers. When Eric died, both women—the widow and the ex-girlfriend—laid claim to the policy proceeds. On cross-motions for summary judgment, the trial court awarded the policy proceeds to (drum roll) … the ex-girlfriend Kay.  The Dallas Court of Appeals affirmed.

Patricia produced evidence that two witnesses had seen Eric fill out the form changing the beneficiary to her and had co-signed that form, that Eric later tripled the amount of insurance so she would have funds to pay off their mortgage if he died, and that Eric apparently had sent the mostly-complete beneficiary-change form to the Post Office because it was stamped “received.” She argued substantial compliance with the requirements for effecting a beneficiary change. Unfortunately for Patricia, FEGLI policies are governed by statute and a host of federal regulations that demand strict compliance with their requirements and that preempt any state law to the contrary. Because Eric’s beneficiary-change form was incomplete and had not been filed with his federal employer before his death as required, the attempted change in beneficiary was ineffective. So, the ex-girlfriend Kay, the last validly-named beneficiary, was entitled to the policy proceeds. Probably not what Eric had in mind.