Covey v. Lucero
Dallas Court of Appeals, No. 05-16-00164-CV (November 17, 2016)
Justices Bridges, Lang-Miers, and Whitehill (Opinion)
An expert opinion that more timely diagnosis and treatment would have “potentially improved” a patient’s condition does not meet the standard for a Chapter 74 expert report. Plaintiffs in this case sued Children’s Medical Center and two healthcare providers after the death of their son. On November 29, 2012, the patient arrived at Children’s emergency room complaining of a fever, flu-like symptoms, and leg pain. He was in the emergency room for several hours, where he was treated with Zofran, ibuprofen, and Benadryl. He was then discharged with a prescription for Tamiflu and instructions to follow up with his primary care physician. He died the following morning while waiting to be seen by his primary care physician.

In support of their wrongful death and survival claims against the healthcare providers, the parents served defendants with an expert report from a pediatric emergency medicine specialist essentially stating the defendants were negligent in not (i) recognizing the seriousness of the patient’s condition, (ii) performing all the testing they should have, (iii) commencing more aggressive treatment, and (iv) hospitalizing the patient. In a medical malpractice case, the plaintiffs must prove the defendants’ negligence was, more likely than not, a cause of the injury. The expert in this case opined: “In my opinion and based on a reasonable medical probability, had such treatment been administered the overall outcome of [the patient’s] medical condition would have potentially improved.” The expert went on to opine that the defendants’ negligent acts and omissions “were in all reasonable medical probability major contributing factors that led to [the patient’s] death.”

Defendants moved to dismiss the case under Chapter 74, arguing the report failed to establish a causal relationship between their alleged negligence and the patient’s death. The trial court denied the motion, but the Dallas Court of Appeals reversed, siding with the healthcare providers. The appellate court held the report failed to establish more than a mere “potential” for a better outcome and also failed to adequately explain how meeting the identified standards of care probably would have saved the patient’s life. “An expert cannot simply opine that the breach caused the injury…. Instead, the expert must go further and explain, to a reasonable degree, how and why the breach caused the injury based on the facts presented.” Because plaintiffs had already been given one opportunity to fix the deficiencies in their expert report, the Court rendered judgment against plaintiffs, dismissing their claims with prejudice.


GDL Masonry Supply, Inc. v. Lopez
Dallas Court of Appeals, No. 05-15-01200-CV (November 2, 2016)
Justices Lang, Myers, and Evans (Opinion)
GDL Masonry Supply settled its lawsuit against Lopez and Rapid Masonry Supply through a Compromise Settlement Agreement and an agreed take-nothing judgment. The Settlement Agreement required Rapid and Lopez to pay GDL $60,000 in a series of $10,000 installments. The Agreement included a fairly standard confidentiality clause that prohibited both sides from disclosing the terms of the deal or the events giving rise to the settled claims, as well as a stipulatation that the confidentiality paragraph was a “material provision” and that “any breach of [that] Paragraph shall be a material breach of th[e] Agreement.” Apparently unable to contain himself, GDL’s owner soon bragged to a third party that Lopez had stolen materials from GDL, that GDL had won the lawsuit, and that Lopez owed him money as a result. Lopez and Rapid then sued GDL for a declaration excusing them from further performance under the Settlement Agreement and for their attorney’s fees, based on GDL’s material breach. The trial court granted summary judgment to Lopez and Rapid, and the Dallas Court of Appeals affirmed. Because the parties had expressly agreed that violation of the confidentiality paragraph constituted a material breach of the Settlement Agreement, GDL’s conduct excused further performance—i.e., further payments—by Lopez and Rapid, and entitled them to recover their fees, as well. The Settlement Agreement was not rescinded, however. Therefore, although the Court of Appeals did not say so, it seems GDL remains stuck with the agreed take-nothing judgment in the original case. Moral: If you agree to a confidentiality clause in your settlement, abide by it.


Lee v. Hunter
Dallas Court of Appeals, No. 05-16-00325-CV (October 27, 2016)
Justices Fillmore, Brown (Opinion), and O’Neill
Lois Hunter sued Dr. Jessica Lee after the death of Hunter’s son, James, while he was a patient at Parkland. Lee moved to dismiss under the Texas Tort Claims Act, section 101.106(f), which provides for dismissal of claims “against an employee of a governmental unit based on conduct within the general scope of that employee’s employment.” Lee argued the medical care she provided to James was within the scope of her employment with a governmental unit, the University of Texas Southwestern Medical Center at Dallas. Hunter disagreed, arguing UT Southwestern did not have the legal right to control the details of Lee’s work.

Under the Texas Tort Claims Act, an “employee” is a person who is in the paid service of a governmental unit, but does not include a person “who performs tasks the details of which the governmental unit does not have the legal right to control.” Lee provided evidence that UT Southwestern controlled the schedule she worked, the facility where she worked, the type of patients she saw, the type of medical services she was authorized to render, and the billing for her services. The Dallas Court of Appeals found that evidence sufficient to establish Lee’s immunity under the statute, even though she was required to exercise independent medical judgment—which UT Southwestern did not control—in the treatment of her patients. The Court therefore reversed the trial court’s denial of Lee’s motion for summary judgment and rendered judgment in Lee’s favor.


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.”