Thursday, April 30, 2015

Statute Of Limitations In Texas

Originally published by Sean Tracey.

A statute of limitations is a constraint on the amount of time any entity or a person may delay prior to taking legal action on any matter that they feel has infringed their rights. The statute of limitations in Texas is divided into two main categories. These limitations establish and stipulate how soon after an…

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Avoiding Job Applicants who Smoke: Is Snuffing out Smokers Discrimination?

Originally published by Cleve Clinton.

smokingFaced with increasing healthcare costs and wanting to be a good role model, Gus Grohcer of Canned Foods 4 Less advises all prospective employees that he does not hire smokers and tests for nicotine, making all job offers “contingent upon passing a pre-hire drug screen including nicotine test.” During the ninety day probationary period, Chimm Nee Stax volunteered a urine sample for testing. When the test returned positive, Gus Grohcer advised Chimm Nee that he was canned. Can Canned Foods 4 Less butt into the lives of its smoker-employees like Stax? Does Chimm Nee Stax have a claim for discrimination, for wrongful termination or for violation of ERISA by interfering with his rights?

Discriminate Against Smokers in Texas? Yes, Gus Grohcer and Canned Foods 4 Less can refuse to hire smokers despite any threat or complaint of Chimm Nee Stax. Smokers are not a protected class under federal law, nor is being short, being overweight or being ugly. Refusing to hire smokers is not illegal in Texas and some 19 other states where it is perfectly legal for an employer to ask if you are a smoker and let that be determinative of hiring.

Eighteen states prohibit discrimination against tobacco users; and eight protect an employee’s right to use in the workplace an otherwise lawful consumable product. Four states prohibit discriminating against employees engaged in lawful activities outside work, including smoking tobacco in California, Colorado, New York and North Dakota, where it is illegal to not hire you simply because you smoke. What about a marijuana smoking Colorado employee Chimm Nee Stax might ask? A case is pending before the Colorado Supreme Court. Even in those some 30 states that prohibit discrimination, if being a nonsmoker is an important part of a specific job’s qualifications, such as an antismoking advocacy group like the American Lung Association, smokers can be rejected.

Relationship Between Smokers and Healthcare Costs? When the smoke clears, Gus Grohcer and Canned Foods 4 Less are not missing the mark on reducing labor costs. The Center for Disease Control reports that smoking is the leading preventable cause of death, disease and disability in the United States, is responsible for more than 480,000 deaths per year, costs more than $289 billion a year, including at least $133 billion in direct medical care for adults, and costs more than $156 billion in lost productivity. Eliminating smokers will increase the bottom line because tobacco users’ annual health care costs are $3,000 to $4,000 greater than non-smokers.

And Gus is not the only one. Estimates are that 61% of large employers are surcharging tobacco users. Hospitals like Baylor Health Care System lead the way with 21% of all hospitals having bans this year (one-third are expected to have bans next year) by imposing a health insurance surcharge on smoking employees of greater than a thousand dollars annually. Those smokers seeking health insurance through the exchanges are seeing insurance rates of approximately $4,000 per year above those for a comparable nonsmoker.

Socioeconomic Discrimination? Since smoking is unevenly distributed, some argue that by refusing to hire Chimm Nee Stax, Gus and others like him are unethical because they are cherry-picking ‘low-risk’ employees and denying smokers employment, risking hurting vulnerable groups. “More than 36% of Americans living below the federal poverty line are smokers, as compared with 22.5% of those with incomes above that level.” And since about 45% of unemployed people smoke, no-hire policies would create a “double-whammy” among this group.

Tilting the Scales in Your Favor. The uncertainty of the costs and regulatory implications of Obamacare undoubtedly encourages every company, including Gus Grohcer and Canned Foods 4 Less to promote the health and well being of its employees. Whether the rationale is as fickle as physical appearance or as pragmatic as healthcare costs and productivity, a non-smoking, fit employee has fewer unplanned, missed work days and is likely to be less burdensome upon the company’s healthcare program. The result? A better, cheaper insurance plan for all employees of Canned Foods 4 Less. Our Gray Reed employment experts Ruth Ann Daniels and Michael Kelsheimer[1] advise that companies are becoming more mindful of excluding job applicants who smoke and are obese. Some companies are even modifying their Employee Handbooks to motivate the reduction and even elimination bad health habits and to promote healthier habits, including health club memberships and the like.

* Thanks to one of our faithful readers Mary Ann Markowitz who recommended this April Tilting article. We welcome recommendations for any legal or business issue affecting your closely held company.

RELATED ARTICLES: Avoiding Job Applicants Who Tip the Scales and Coming Up Short: Is it the Height of Prejudice Not to Hire Short People?

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Safety Over Convenience: When Should Employers Investigate their Employees’ Mental State?

Originally published by Alex Fuller.

busStephen F. Austin is the CEO of Alamo Lines, a bus line servicing Central Texas. One night, a young, promising driver, David Boone, confessed to Stephen that he was suffering from severe depression and suicidal thoughts. Boone did not mention that his depression was due to the breakup of his romantic relationship with co-worker, Samantha Houston. Austin, concerned only that he might have to cancel that night’s San Antonio-to-Schlitterbahn Run, asked Boone if he was “ok” to drive, but took no other action. Boone said he was fine.

Just before leaving on his route, Boone got into an argument with and assaulted Samantha in the Alamo offices. In a desperate attempt to commit suicide, he later drove his bus off of the road and into a ditch, injuring 30 passengers. A subsequent government investigation revealed that Boone had a previous conviction for assault. Is Alamo Lines liable for Samantha’s injuries? For the injuries to the passengers on Boone’s bus?

No and Yes. Alamo Lines is not liable to Samantha because her injuries were unforeseeable. However, Alamo Lines is probably liable to its passengers because the harm caused to them was foreseeable.

What Risks Must Alamo Guard Against? Generally, employers have no duty to guard against unforeseeable risks. However, employers do generally have a duty to hire employees who are competent at their jobs. While a company that employs drivers has a duty to ensure that its drivers are safe and competent drivers – which may include running a background check on their driving record – employers in Texas generally have no duty to conduct criminal background checks on their employees because those employee’s potential criminal acts are, as a matter of law, unforeseeable. Because Texas courts hold that an employee’s criminal acts are not foreseeable. Therefore, because Boone’s assault of Samantha was unforeseeable, Alamo Lines is not responsible.

On the other hand, Alamo Lines not only employed an unsafe, suicidal driver – it actually was aware of Boone’s mental problems and suicidal thoughts before allowing him to drive one of its buses. Even if Alamo Lines did not have a duty to give its drivers psychological tests, a court could conclude that, with actual knowledge of Boone’s severe mental problems, Alamo Lines was obligated to sideline Boone until a psychiatrist cleared him to drive.

Tilting the Scales in Your Favor. Employers are unquestionably required to hire and retain people who are competent at their jobs, and generally do not have a duty to prevent unforeseeable accidents. Employers who do get actual knowledge of an employee’s violence or severe mental illness are put on notice to proactively take steps to ensure the safety of fellow employees, your company and your customers.

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No discharge of community debt

Originally published by David Coale.

Dean and Sherry Buescher filed for bankruptcy; First United Bank opposed their discharge, and won.  Sherry Buescher argued on appeal that the bank lacked standing, because she did not personally guarantee the loans at issue.  The Fifth Circuit disagreed, noting that because Texas is a community property state, the bank could sue in rem in Texas to collect her husband’s guaranty obligation from community property.  Buescher v. First United Bank & Trust, No. 14-40361 (April 15, 2015).

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Justices reverse $3.73M Hurricane Ike verdict

Originally published by Record News.

AUSTIN – Apartment owners who won a $3.73 million jury verdict in an insurance dispute from Hurricane Ike won’t see a penny of it, the Supreme Court of Texas decided on April 24.

Texas-Supreme_Court-oldAll nine Justices held that Galveston County District Judge Lonnie Cox should have rejected the jury’s verdict against Lexington Insurance.

The Justices affirmed appellate court judges who found that Lexington covered all of the damage that its policies obligated it to cover.

The partnership that brought the suit, JAW The Pointe, paid about $5.7 million for 13 two story buildings next to Galveston’s seawall in 2007.

For insurance, the partners combined with owners of about 300 other apartment complexes in many states to obtain $100 million in coverage per occurrence.

The group policy called for Lexington to cover the first $25 million.

The partners separately obtained flood insurance.

Hurricane Ike struck Galveston on Sept. 13, 2008, damaging The Pointe and dozens of other complexes on the group policy.

In October, city officials told apartment owners they would have to demolish and rebuild if damage exceeded 50 percent of market value.

In November, Lexington advanced $300,000 to The Pointe for loss of business. In December, the city declared that damage exceeded 50 percent of market value.

The partners hired an architect, began demolition, and submitted a claim to Lexington for all costs, fees, and other expenses.

In 2009, a consultant for Lexington estimated $1.278 million in wind damage and $3.5 million in flood damage.

Lexington paid the partners $818,000 for wind damage minus a deductible, but did not pay other costs for demolishing and rebuilding The Pointe.

The partners sued Lexington and other defendants, alleging breach of contract and violations of the state’s insurance code and its deceptive trade practices act.

The partners relied on policy language covering loss caused by enforcement of an ordinance or law.

Lexington then provided formal notice that it would not pay for flood damage or for the cost of complying with city ordinances.

In 2010, Lexington notified them that it had exhausted its $25 million limit.

As trial approached, the other defendants settled for about $5,700,000.

The partners had also received about $3,200,000 from their flood insurer and $500,000 from an excess insurer in the group program.

Those amounts, plus Lexington’s payments for business loss and wind damage, lifted the partnership’s recovery above $10 million.

In 2011, prior to trial, Cox dismissed the breach of contract claim on the grounds that Lexington exhausted its policy limit.

He also ruled that the policy did not cover floods.

Trial proceeded solely on statutory claims, and jurors found that Lexington engaged in unfair or deceptive acts or practices.

They found that Lexington did not attempt to settle the claim in good faith, did not provide a reasonable explanation for denying coverage, and did not deny it within a reasonable time.

They awarded $1.23 million in actual damages, plus $2.5 million in statutory damages for knowingly violating statutes.

Cox added $170,000 in legal fees.

Lexington moved for a new trial, and Cox denied it.

The Fourteenth Court of Appeals in Houston reversed Cox, finding that both wind and flood caused the damage that triggered the ordinance.

“An insured is not entitled to recover under an insurance policy unless it proves its damages are covered by the policy,” Justice William Boyce wrote.

“When covered and uncovered causes of loss combine to create a loss, the insured is entitled to recover only that portion of the damage caused solely by the covered cause of loss,” he wrote.

“The insured must segregate the loss caused by the covered cause of loss from the loss caused by the uncovered cause of loss; the failure to segregate covered and uncovered causes of loss is fatal to recovery,” he wrote.

The Supreme Court agreed, finding the city based its decision on a combination of wind and flood.

Justice Jeffrey Boyd wrote, “The clause included in Lexington’s policy provides that Lexington will not pay for any loss resulting directly or indirectly from an excluded peril, regardless of whether a covered peril contributes concurrently or in any sequence to the loss.”

He wrote, “Under this language, if the covered wind damage and the excluded flood damage contributed to cause the enforcement of the city ordinances, then the policy excludes coverage.”

Marc Gravely of San Antonio represented Lexington.

Michael Choyke of Houston represented the partnership.

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Mad Men Non-Competes

Originally published by Rob Radcliff.

Courtesy of AMC

The much acclaimed Mad Men AMC television series is coming to an end with only a few episodes left.  The partners and employees of the New York advertising firm Sterling Cooper have given us a number of employment, partnership, negotiating, and other lessons over the years.  Times have changed with the firm as we have followed its evolution from 1960 to the early 1970s.  The final and seventh season finds Sterling Cooper operating as a subsidiary of McCann Erickson, an advertising behemonth.  Previous to this the Sterling Cooper partners sold their interests to McCann and they are now all millionaires.  For the past few episdoes the Sterling Cooper folks have been operating with relative autonomy with offices in New York and Los Angeles.

So, it comes as a shock to Roger Sterling when he finds out that McCann has cancelled Sterling Cooper’s New York office lease and McCann will essentially absorb Sterling Cooper.  The partners have a few closed door meetings where it is revealed by Joan (the sole female partner) that they are all subject to a non-compete agreement, which was part of the terms of their buyout.  Of course buyout non-competes are relatively common.  An acquirer of a new company does not want to  compete with the folks it is acquiring after the deal closes.  Courts are generally more apt to enforce these types of agreements though in Texas, they still must satisfy the non-compete statute.   Regardless, the partners do not question the enforceability of the non-compete.  They assume it is enforceable and place no calls to counsel for guidance.  (That would probably take too long in the space of a 60 minute episode.)

Leave it to Don Draper to come up with a plan.  The Sterling Cooper partners will move to Los Angeles and operate and continue to operate a subsidiary of McCann.  They will continue to work for clients that McCann cannot represent and everyone will be happy.  The partners then go into overdrive as they attempt to secure the move of those clients and Don prepares to make the most imporant presentation of his life to McCann.

The next day the partners head over to McCann where their proposal is met dead on arrival.  McCann concedes the Sterling Cooper partners have won and awards them several high profile accounts to handle.  Don gets Coca-Cola.  Of course, Joann gets nothing.  Now we can spend the next few episodes seeing how the contour of this new relationship works.  We’ll see how the sexist McCann employees deal with Joann.

Courtesy of AMC - Celebratory drinks after the meeting.

The Sterling Cooper partners give us a solid takeaway for non-compete disptues.  In many instances the non-compete an employee faces is enforceable.  But, that fact does not foreclose the possibility to negotiate or reach some agreement with the former employer.  A non-litigation solution in most instances is preferable to a lawsuit where the outcome is uncertain.

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Texas Supreme Court Changes Retaliation Requirements

Originally published by Thomas J. Crane.

The Texas Supreme Court reversed the jury decision in Nicholas v. SAWS. See decision here. The result is not surprising. The Texas Supreme Court frequently reverses jury verdicts in favor of victims of discrimination. The court found that Debra Nicholas did not have a reasonable belief that she was opposing discrimination when she warned a SAWS executive about asking two younger staffers to lunch. I previously wrote about this case here and here. The decision omits some facts, such as it was the SAWS General Counsel who first believed Greg Flores’ actions amounted to possible sexual harassment. The General Counsel asked Debra Nicholas to get involved. One of the junior staffers said she would file a sexual harassment complaint if the invitations did not stop. I wrote earlier that SAWS’ argument on appeal would be difficult to win.  See my prior post here. Yet, it is that every basis on which the Texas Supreme Court rests its decision. Indeed, SAWS came up with that argument after its earlier appeal to the Fourth Court of Appeals. The Supreme Court, nevertheless, accepted the argument because it involves SAWS’ immunity from suit. Cough, cough. That is a slim reed on which to allow a new argument on appeal. Partis are not supposed to be bring up new arguments on appeal. But, the Supreme Court allowed this new argument. So, now, an element of a case will be part of a governmental entity’s immunity from suit, and most new arguments would be acceptable on the second or third appeal. That is the Supreme Court second error.

The first error is found in the substance of the opinion. The Texas Supreme Court has imposed a new, high burden for retaliation cases. The high court rightly states that sexual harassment must be severe or pervasive to constitute an actionable complaint. And, the court is right that offhand comments or incidents alone will not suffice. But, that reasoning addresses a different issue, whether certain actions rise to the level of sexual harassment. This issue is different. This case asks what constitutes “good faith” belief that a person is opposing discriminatory conduct. There is a gray area, such as here, where a potential victim seeks to stop harassment before it becomes severe or pervasive. Protection from reprisal was intended to protect persons who believe in good faith that some conduct is discriminatory. The Texas Supreme Court seems to have conflated two different issues.

The courts have long held that there need not be an actual underlying violation of law by the harasser. See, e.g. Payne v. McLemore’s Wholesale & Retail Stores, 654 F.2d 1130, 1138-39 (5th Cir. 1981) (employee is protected under the participation clause “regardless of the truth or falsity of the contents of the charge”); Pettway v. American Cast Iron Pipe Co., 411 F.2d 998, 1004-05 (5th Cir. 1969) (fact that employee made false and malicious statements before EEOC is irrelevant to protection under participation clause); Wyatt v. City of Boston, 35 F.3d 13, 15 (1st Cir. 1994) (Nothing in wording of participation clause even implies a requirement that the underlying claim be reasonable). There are many more cases all finding that the underlying complaint must be in “good faith,” but not necessarily an actual violation.

The Texas Supreme Court has now added a new requirement for participation in opposition to discrimination: the person must reasonably believe the claim is valid. That will stifle great many complaints. Requiring reasonableness is tantamount to requiring the underlying complaint constitute a valid complaint of discrimination.

As the Fifth Circuit said in 1969, “. . . a single poor, ignorant employee with a grievance, not a sling shot in his hand, faces a huge industrial employer in this modern David and Goliath confrontation . . ” Pettway, id, at 1005. Protection must be afforded to those who seek the benefit of Title VII to equalize, said the Fifth Circuit in 1969. Pettway, id. The Texas Supreme Court is undoing decades of precedent in this decision.


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Your Texas Legislature at Work, Part 2

Originally published by Charles Sartain.

Posted by Charles Sartain

tx capitolThe Texas legislature is still busy on energy issues. Is that good or bad? It depends on your situation; oil patch thieves won’t like it.

Wind Energy

Senate Bill 931 would blow away the Renewable Portfolio Standard, established in 1999 to set renewable energy goals for Texas. The bill would also halt construction of transmission lines in Competitive Renewable Energy Zones, through which miles of transmission lines connect West Texas wind energy with cities in the eastern part of the state.

The rationale is that wind energy targets in the original act have attained their goal and thus should be terminated. Here is a discussion of the bill.

Wind energy proponents are unhappy. See, for example, this editorial in the Dallas Morning News by Jim Marston of the Environmental Defense Fund. Among other complaints, he cites a double standard:

Oil and gas subsidies = good

Alternative energy subsidies = bad.

They seem to have a point.  Texas gives tax incentives for certain oil and gas production. What’s the difference?

Allocation Wells

House Bill 1552 would add a provision to the Natural Resources Code to address allocation wells. The high points are:

  • The statute would apply unless expressly prohibited by a lease, deed or other contract.
  •  An operator may obtain a RRC permit allowing it to drill, operate and produce from a well that traverses multiple tracts in order to prevent waste, promote conservation, or protect correlative rights.
  • Absent an agreement among affected owners of royalty or mineral interests regarding how to allocate production among the tracts, production will be allocated to each tract on in the proportion “that the operator or lessee reasonably determines or reflects the amount produced from each tract.”
  • The operator must send written notice to affected royalty and mineral owners.
  • If there is an agreement with a royalty or mineral owner allocating production, the agreement will prevail.
  • An affected owner unhappy with the allocation assigned by the lessee may request a RRC hearing on whether the production will harm the correlative rights of working interest and mineral owners, is necessary to prevent waste, and accurately attributes to each affected owner its fair share of the aggregated production.

If the bill passes I will discuss what its effect might be.

Oil Field Theft

House Bill 3291 establishes the crime of selling oil, gas or condensate without a Railroad Commission permit. The bill specifically includes oil and gas equipment or pipeline equipment. If the value exceeds $10,000 it’s a felony.

How do they do it?

In case you are looking for a new line of work: According to proponents of the bill, one way to steal production is to purchase a well that has ceased to produce for lack of production and claim that it is producing and selling oil stolen from another well.  Then you acquire a vacuum truck and help yourself to what’s not yours.

A Religious Experience, Part 2

As promised last week, here are the other artists “discovered” by Sam Phillips and recorded for the first time at Sun Studio:

Johnny Cash 1955

Carl Perkins 1956

Roy Orbison 1958. This one can’t be beat for its intellectual content.

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Six Signs You Should Pursue A Career In Law

Originally published by Bob Kraft.

6 Signs You Should Pursue A Career In Law

Some people are naturally inclined towards one career path or another. A career in law is no different. While many are innately good at this type of work, with the right amount of patience and effort, almost anyone can pursue a career in law if they are passionate enough. These are six signs that you should pursue a career in law.

You Want a Flexible Career

One sign that you should think about a career in law is if flexibility is important to you. Law careers are very flexible. You can focus on specific areas of the law or even enter new areas as your career progresses. You can live and work nearly anywhere in the country and start your own business if that is something that interests you.

You Have Good Logical Thinking Skills

A career in law requires you to think very logically and to follow complex lines of thought to their conclusion. These skills are tested from the start and need to be applied when pursuing a degree. If you are comfortable following complicated lines of logic, then you can excel as an attorney.

You Are Willing To Put In Long Hours

You will want to pursue a career in law if you are willing to put in long hours to build your experience and reputation. A law career involves working long days both alone, with coworkers and with clients. You might have to work unusual hours during a case. If you are willing to do this, then a law career can be very rewarding.

You Can Communicate Well

Communicating is an important part of being a lawyer. You will be spending a large amount of time writing legal documents, reading motions and speaking convincingly to juries, judges and clients. If you can read, write and speak well, then you are perfectly suited for a career in law.

You Are Already Interested In the Law

An inherent interest in the law indicates that a career as a lawyer is probably right for you. This means you take a natural interest in the legal side of issues or in the justice system as a whole. A basic interest shows you are already enthusiastic about learning more.

You Have a Desire to Make a Difference

A final sign is if you have a desire to make a difference in the world or the community. A lawyer is in a unique position to help people of all types. If you want to positively impact the lives of others, then a law career is the path to follow.

A career in law can be satisfying, exciting and engaging. Getting a LL.M. online degree requires determination and can be very rewarding. Pursuing a career in law is the right decision if any of these signs apply to you.

This article is courtesy of Anita Ginsburg, a freelance writer from Denver who often writes about home, family, law and business. A mother of two, she enjoys traveling with her family when she isn’t writing.

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Campaigns to Combat Texting and Driving

Originally published by Greg Baumgartner.

April is Distracted Driving Awareness month, as set forth by the National Safety Council. Although there are many different forms of distracted driving, such as fiddling with the radio, talking or conversing with passengers, grooming, eating and drinking, and so forth, there remains little doubt on the number one distracted driving culprit: texting.

Read more »

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To compel arbitration, do not misplace the arbitration agreement.

Originally published by David Coale.

lostlogoChester sued DIRECTV for age discrimination; it moved to compel arbitration.  Chester swore: “I do not remember signing any arbitration agreement, and dispute that I signed an arbitration agreement with Directv, LLC at anytime. . . . Had I been offered an arbitration agreement I would have attempted to continue my employment without signing it, and only would have signed it if the employer threatened to terminate me if it was not signed. . . . If I was threatened with termination if I did not sign an arbitration agreement I would remember it. Since I do not remember any such threat I am sure I did not sign an arbitration agreement.”

DIRECTV, admitting that it lost the arbitration agreement, argued that it had a practice of having employees sign one of two form agreements.  The Fifth Circuit was unimpressed, noting that the two agreements contained substantial substantive differences.  DIRECTV sought solace in the fact that it had lost Chester’s entire file, not just the arbitration agreement; the Court noted that DIRECTV was unable to provide arbitration agreements for 26 of the 87 other employees in the relevant office.  In sum: “Considering the entire record, it is clear that, somewhere along the way, DIRECTV’s purported practice of collecting and filing arbitration agreements for all new employees broke down . . . .” Chester v. DIRECTV, LLC, No. 14-60247 (April 29, 2015, unpublished).

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‘Modern’ Estate Planning Considerations

Originally published by Gerry W. Beyer.

Actress Sofia Vergara recently became enmeshed in a legal battle with her former fiancĂ©, Nick Loeb, over two frozen embryos the couple created when they were planning to use in vitro fertilization. Vergara and Loeb documented their agreement to keep…

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Recent Supreme Court Decisions of Note

Originally published by Steven Callahan.

Here are four relatively recent Supreme Court decisions of note to federal court and IP practitioners:

  • American Broadcasting Cos. v. Aero: the Supreme Court held that Aero infringes copyright owners’ exclusive right “to perform the copyrighted work publicly” by “by selling [Aero’s] subscribers a technologically complex service that allows them to watch television programs over the Internet at about the same time as the programs are broadcast over the air.” (Decision available here.)
  • B&B Hardware v. Hargis Industries: the Supreme Court held that the district court should have applied issue preclusion to the Trademark Trial and Appeal Board’s (“TTAB”) decision that a mark was confusingly similar to another mark: “[C]onsistent with principles of law that apply ininnumerable contexts, we hold that a court should give preclusive effect to TTAB decisions if the ordinary elements of issue preclusion are met.” (Decision available here.)
  • POM Wonderful v. Coca-Cola: the Supreme Court held that the federal Food, Drug, and Cosmetic Act does not preempt a false advertising claim under the Lanham Act: “Competitors, in their own interest, may bring Lanham Act claims like POM’s that challenge food and beverage labels that are regulated by the FDCA.” (Decision available here.)
  • Johnson v. City of Shelby: the Supreme Court summarily reversed the Fifth Circuit’s dismissal of a case where the plaintiffs failed to invoke 42 U.S.C. § 1983 in their complaint. (Decision available here.) Rule 8 does “not countenance dismissal of a complaint for imperfect statement of the legal theory supporting the claim asserted.” “In particular, no heightened pleading rule requires plaintiffs seeking damages for violations of constitutional rights to invoke §1983 expressly in order to state a claim.” Perhaps most importantly, the Supreme Court stated that “[o]ur decisions in Bell Atlantic Corp. v. Twombly, 550 U. S. 544 (2007), and Ashcroft v. Iqbal, 556 U. S. 662 (2009), are not in point, for they concern the factual allegations a complaint must contain to survive a motion to dismiss. A plaintiff, they instruct, must plead facts sufficient to show that her claim has substantive plausibility. Petitioners’ complaint was not deficient in that regard.” (emphasis in original).

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Appellate court tells Floyd to enter DuPont judgment

Originally published by Record News.

Jefferson County District Judge Donald Floyd tried again to award a new trial to an asbestos plaintiff, and again he failed.


On April 23, Ninth District appellate judges in Beaumont directed Floyd to enter judgment on a jury verdict in favor of chemical manufacturer DuPont.

Floyd held trial for the estate of Willis Whisnant in 2008, and ordered a new trial after jurors cleared DuPont.

In 2009, the Supreme Court of Texas ruled that Floyd could not order a new trial unless he explained his reasons.

It took Floyd five years to craft an explanation, and the one he crafted didn’t fly.

“We conclude that the record does not support the trial court’s rationale for ordering a new trial,” Ninth District judges wrote. “We are confident that the trial court will vacate its order granting Whisnant’s motion for new trial and enter judgment on the jury’s verdict.”

According to DuPont lawyers, Floyd didn’t write the new trial order but simply signed one that Whisnant’s lawyers wrote.

Whisnant filed an asbestos suit in 1998, and died a year later.

His death certificate listed lung cancer as his cause of death. He had smoked cigarettes for 40 years.

In 2007, lawyers at Reaud, Morgan & Quinn engaged experts who concluded that Whisnant died of mesothelioma.

The trial lasted a month, and ended with a verdict that DuPont’s negligence was not a proximate cause of injury.

Plaintiff lawyer Glen Morgan moved for a new trial, and Floyd granted it.

DuPont petitioned the Ninth District for relief, and Ninth District judges denied it. DuPont petitioned the Supreme Court for relief, and the Justices decided to review the case along with another like it.

The Justices split on the two cases, with five requiring an explanation for a new trial and four deferring to a trial judge’s discretion.

Last July, Morgan sent DuPont a proposed order granting a new trial.

In August, Floyd denied the new trial motion he had granted in 2008.

He signed final judgment in DuPont’s favor.

On Sept. 4, Morgan filed a motion identical to the one Floyd had just denied. On Sept. 10, Floyd held a hearing and granted the motion.

He signed an order finding that the verdict went against the great weight and preponderance of the evidence.

DuPont petitioned the Ninth District for relief, which it obtained rather quickly.

Chief Justice Steve McKeithen and Justices Charles Kreger and Leanne Johnson heard oral argument on Jan. 22, and issued a decision in three months.

They held that a defense verdict “does not have to be supported by a preponderance of the evidence or even affirmative evidence, because to require such would incorrectly shift the burden of proof.”

They wrote that witnesses Carl Gantt and Bobby Shugart had active asbestos suits with the same lawyers as Whisnant.

“In weighing the credibility of the witnesses, the jury could have considered it to be important that neither Gantt nor Shugart was completely disinterested,” they wrote.

They said jurors could have believed that DuPont’s witnesses provided a more accurate depiction of working conditions on its premises. They also said jurors could have concluded that Whisnant failed to establish that DuPont knew of the danger asbestos posed to contract employees like him.

They wrote that jurors could have believed that DuPont took safety measures, and could have disregarded testimony that it didn’t enforce the measures.

They said pathologist Samuel Hammar admitted that without diagnostic tools, he could not differentiate between lung cancer and mesothelioma.

They wrote that jurors could have believed that prior exposure at other facilities caused Whisnant’s disease, if any.

Sandra Clark of Beaumont led DuPont’s legal team.






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William-Yulee v. Florida Bar

Originally published by SupremeCourtHaiku.

john robertsStates may prohibit

Direct requests for money

From those seeking bench


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Court of appeals upholds removal of executor

Originally published by J. Michael Young.

In Estate of Montemayor, the San Antonio Court of Appeals considered a challenge to the probate court’s removal of an independent executor.  Such removals have become more difficult since the Texas Supreme Court’s opinion in Kappus v. Kappus.

The probate court removed the executor because it found that, after over three years, he had not effectively pursued resolution of the estate.  That alone is not necessarily grounds for removal.  But the sole asset of the estate was a house and lot. The executor moved into the house and told one of the beneficiaries that “he was going to keep the house” and that he “was going to live and die in that house.”  He also changed the locks on the gate leading to the house. Furthermore, he did not pay the estate any rent for living in the house.

The  court of appeals found that such conduct supported the probate court’s finding that the executor had a conflict of interest amounting to gross misconduct or gross mismanagement of the estate.  The executor breached his fiduciary duty to protect the beneficiaries’ interest and allowed his personal interest to conflict with his fiduciary obligations to the beneficiaries.

In this case, it become necessary for the beneficiaries to hire an experienced probate litigation attorney to protect their interests in the estate.  Often, that is the only effective means for beneficiaries to protect their interests, particularly in an independent administration.


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Wednesday, April 29, 2015

Understanding the Legal Effects of Pet Related Injuries

Originally published by Bob Kraft.

Understanding the Legal Effects of Pet Related Injuries

Millions of dog bites take place every single year, and these accidents remain the number one cause of homeowner insurance claims. Due to this phenomenon, many pet owners have found themselves unsure of their legal options and responsibilities after their pet has injured someone or is falsely accused of injuring someone. All pet owners and those injured by another party’s pets should understand the legal effects of this class of injuries.

Laws Change Between States
The laws are similar or even identical in at least some states, but owners should know that there are no federal pet-related injury laws. That being said, each state does have a handful of statutes regarding pet ownership, pet injuries, and injuries caused by pets. In every single state, there are at least some instances in which an owner will be responsible for an injury and some instances in which the injured party is partially or fully at fault.

When Is the Injured Party Responsible?
Just as with almost any other accidents or injuries, one or more parties may be responsible for a dog bite. Proving that the injured person is to blame will come down to a few unique factors. Primarily, this involves the individual provoking the pet, harming the pet, or knowingly putting themselves in a dangerous situation. This may include a criminal entering your property illegally or neighborhood children hurting or provoking the animal.

The “One-Bite” Rule
This is a general term that has been given to animal bite laws in a number of states throughout the country. Currently, around one-third of all states have a one-bite statute with many more maintaining similar rules. In broad terms, this statute claims that a pet owner becomes fully responsible for any injuries caused by their pet after it has bitten a person one time. At that point, the owners should understand that their dog has the potential to become violent and should take the necessary precautions.

When to Get Help
There is almost no pet-related injury that either owners or victims will not benefit from an experienced personal injury attorney. In addition to these cases becoming complex, they also involve strong emotions and potentially pit neighbors, family members, or friends against one another. An attorney is not just there to ensure that reliable data is collected and the proper damages are awarded, but also that the case or out-of-court negotiations are as amicable as possible.

When injuries involve any kind of pet, it is important that no one takes any legal risks. Contacting a personal injury attorney is the quickest way to move past these issues without them escalating into an ongoing legal battle.

This article is from Lizzie Weakley, a freelance writer from Columbus, Ohio. She went to college at The Ohio State University where she studied communications. She enjoys the outdoors and long walks in the park with her three-year-old husky Snowball.

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Say What?! – Did They Really Say That?

Originally published by State Bar of Texas.

From a federal court criminal trial in Dallas:

Mr. Hunter: Your Honor, I understand that our witness had gone to the parking lot to retrieve his glasses. So I understand we’re going to be penalized for it, but that’s what we’re waiting for. And I apologize to the court. I’ll take a voluntary five minutes if people are wanting to go to the bathroom on me.

The Court: On you?

Mr. Held: I don’t think I’ll touch that.

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Affirmative Defenses in Criminal Cases in Texas: Part II of VII

Originally published by Benson Varghese.

Affirmative Defenses in Criminal Cases in Texas: Mistake of Fact

Part II of VII

Continuing in our series of affirmative defenses in Texas, “mistake of fact” is the second affirmative defense set out by the Texas Penal Code. As with all affirmative defenses, with mistake of fact, the accused is first affirming that the offense did take place, while also providing a legal basis to prevent the accused from being held criminally responsible for the offense.

A mistake of fact is a defense that can be raised if the defendant made a mistake, the mistake was one that  could be reasonably made, and if the facts were as the defendant thought they were, the defendant would not have had the requisite mental state to be convicted of a crime. That’s a complicated definition, and a defense that can be complex in practice.

Example of a Mistake of Fact Defense in Texas

An oversimplified example may be this: the defendant picks up a cellphone with the mistaken belief that it is his. He later charged with theft of the cell phone. His mistake negates the “intentionally or knowingly” mental state requirement that the prosecution must prove in order to secure a conviction.

So why is this not a commonly raised defense? For one very important reason: It is up to a jury (or fact-finder) to determine if the mistaken belief was reasonable. See Granger v. State, 3 S.W.3d 36 (Tex. Crim. App. 1999)

Notice that a mistake of fact can only be raised in a case where there is a mental state or mens rea requirement. It cannot be raised in strict liability cases. Whether or not the defense can be raised, and whether the defense will be successful, is largely dependent on the facts and whether the defense attorney can convince the fact-finder that the mistake of fact was reasonable. For example, while the offense itself is not strict liability in sexual assault of a minor case, there is no requirement that the accused knew the victim was underage, therefore you cannot raise a mistake of fact defense claiming the accused was mistaken about the age of the victim.

If you or a loved one has been charged with a criminal offense where you believe there may have been a mistake of fact, it is important to have an attorney who understand juries and the prosecutors in the jurisdiction that you are in. An experienced criminal defense attorney who has tried a large number of jury trials will be able to give you an idea of how strong your mistake of fact defense is and how it may play out with a jury.

The Mistake of Fact defense is laid out in Penal Code Section 8.02:

Mistake of Fact

(a) It is a defense to prosecution that the actor through mistake formed a reasonable belief about a matter of fact if his mistaken belief negated the kind of culpability required for commission of the offense.

(b) Although an actor’s mistake of fact may constitute a defense to the offense charged, he may nevertheless be convicted of any lesser-included offense of which he would be guilty if the fact were, as he believed.

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Law Firm Branding: Do Your Clients Understand Yours?

Originally published by Cordell Parvin.

Quickly tell me what first comes to your mind when you think of your firm’s brand.

Does the brand just communicate who you are or what you do or does it also convey what your clients will experience working with you? How do you your firm’s clients would answer the same question? How would your lawyers and staff answer the same question?

A lot has been written about branding for law firms and firms have paid consultants a great deal of money to develop the firm brand. I recently saw a New York Times on line article on branding Letter from Pop!Tech: Tips on Persuasive Branding .

The article discussed a three hour primer on branding presented by Cheryl Heller, the founder and CEO of Heller Communication Design. She told the group that a good brand expresses identity, but a great brand conveys a promise. A great brand then would tell your clients and your lawyers and staff what they can expect in return for their fees and time.

According to Heller, employees (your firm’s lawyers and staff) are the most important audience any company (firm) has. “If your brand promise does not engage your employees, you won’t be able to deliver it.”

If you read my recent blog: Lagniappe: Giving Your Clients Value and Extraordinary Service, you read about my old law firm’s “brand:” “The Jenkens Experience, the Experience You Deserve.”

Those words were at least a promise, so using Keller’s test we were on the right track. There was only one slight problem: What did we promise?

At the end of the New York Times article the question is asked: “How do you create a brand message that expresses your identity, delivers a compelling promise, smf persuades your audience to behave in a certain way. There are four tips:

1. Be brief. Be Clear. The Jenkens Experience, the Experience You Deserve was brief, but it was not clear.

2. Don’t clutter your brand promise with references to how you differentiate yourself. That means we should not have cluttered our message with how we give clients the Jenkens experience. Yet again, we needed to have clarity about the meaning.

3. Avoid common words used by other companies. I bet if I went to 100 law firm websites I would see common phrases like: “full service, client focused or client centric, experienced, innovative, strategic, focused, winning, leading, service or serving, committed and my favorite: solutions.

4. Speak to all your constituents. The Jenkens Experience did not speak to lawyers and staff. I doubt that half our lawyers and a tenth of our staff even knew that was our branding slogan.

Business clients have shared in surveys that they want their lawyers to understand their industry, their business and their own personal needs. They do not want to teach their lawyers these things while paying them to learn.

Clearly I am not a branding expert. Yet, knowing what clients want would cause me to focus on those promises. Suppose my old law firm’s brand had been: “The Jenkens Experience: Lawyer who understand your industry, your company and your individual needs.” I think we could have at least have met the criteria in Cheryl Heller’s four tips.


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More than half of your potential jurors have  smartphones now

Originally published by Rita Handrich.

smartphones-thumbJust when you thought you could relax a little about jurors accessing the internet during a jury trial, we learn this factoid from the smart folks at Pew Research Center:

“64% of American adults now own a smart phone of some kind, up from 35% in the spring of 2011. Smartphone ownership is especially high among younger Americans, as well as those with relatively high income and education levels.”

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“Close Call” In Terms of Infringement and Validity Precludes Willfulness Claim In Patent Case

Originally published by Steven Callahan.

On March 9, 2015, Judge Lynn issued an Order (available here) in Melchior v. Hilite International. The Court found that a “close call” in terms of infringement/invalidity issues precluded the plaintiff’s willfulness claim:

Specifically, the Court found Plaintiff did not meet the objective prong of willful infringement because the issues of infringement and invalidity were, in the Court’s view, a “close call.” See AFT Trust v. J&L Fiber Services, Inc., 674 F.3d 1365, 1377-78 (Fed. Cir. 2012) (affirming the district court’s grant of summary judgment of no objective recklessness based on the patent’s language, compelling non-infringement and invalidity arguments, and the PTO’s rejection of the reissue application); DePuy Spine, Inc. v. Medtronic Sofamor Danek, Inc., 567 F.3d 1314, 1337 (Fed. Cir. 2009) (affirming the district court’s finding of no willful infringement on the objective prong because the issue of infringement was a “close one”).

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Opposition to federal fracking rules grows

Originally published by NRF Hydraulic Fracturing Blog.

Earlier this year, the Department of Interior’s Bureau of Land Management (BLM) released its final version of rules governing hydraulic fracturing on federal land. As discussed in a previous post, these rules will not only impose heightened requirements on drilling operations but also increase the reporting duties for drilling operators. Shortly after the BLM released its proposal, the Independent Petroleum Association of America (IPAA) and Western Energy Alliance (WEA) sued the BLM in Wyoming to challenge the proposed rules. The IPAA and WEA argued that the BLM’s rules are unnecessary because states adequately regulate hydraulic fracturing. The IPAA and WEA have also alleged that the BLM’s final rules are unsubstantiated.

A second lawsuit was later filed by Wyoming against the BLM. In its petition for review of the BLM’s fracking rules, Wyoming stated that the BLM exceeded its authority and its fracking rules would hamper state regulation of hydraulic fracturing. Specifically, Wyoming has argued that the BLM’s authority under the Mineral Leasing Act and the Federal and Policy and Management Act do not authorize the agency to enact the hydraulic fracturing rules. According to Wyoming, the BLM’s rules also conflict with the Safe Water Drinking Act, which grants states the exclusive right to regulate underground injections. North Dakota later joined Wyoming’s petition for review. North Dakota has stated that it is one of the largest oil and gas producers in the United States and the BLM’s rules inhibit the state’s ability to regulate hydraulic fracturing in the state.

The opposition to the United States Bureau of Land Management’s (BLM) rules for hydraulic fracturing is growing. Colorado has also joined the lawsuit challenging the BLM’s new rules for hydraulic fracturing. Cynthia Coffman, the Attorney General for Colorado, describes the BLM’s rules as an encroachment on an area that has historically been regulated by states. Coffman further noted that Colorado has sufficient regulations governing hydraulic fracturing. In addition, Coffman stated that although hydraulic fracturing should be regulated, the BLM lacked the authority to enact the rules.

Read the amended petition for review.

This post was written by Barclay Nicholson ( or 713 651 3662) and Johnjerica Hodge ( or 713 651 5698) from Norton Rose Fulbright’s Energy Practice Group.

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Texas Supreme Court Clarifies Chapter 74

Originally published by Carrington Coleman.

Randol Mill Pharmacy v. Miller
Texas Supreme Court, No. 13-1014 (April 24, 2015)
Justice Lehrmann (Opinion)

Ness v. ETMC First Physicians
Texas Supreme Court, No. 14-0353 (April 24, 2015)
Per Curiam Opinion

Last week, the Texas Supreme Court issued two opinions furthering clarifying when an expert report is required and when an expert report is sufficient. It concluded that a compounding pharmacy and its pharmacists are “health care providers” subject to the protections of Chapter 74 and that an expert report may be sufficient, even if it contains internally inconsistent opinions.

The first case, Randol Mill Pharmacy v. Miller, involved a question of first impression: whether a pharmacist who provides compounded drugs that are administered by a physician is a “health care provider” under Chapter 74 of the Texas Civil Practice and Remedies Code. Chapter 74 specifically includes pharmacists in the definition of health care provider, but then defines “pharmacist” as a person licensed under the Texas Pharmacy Act who “dispens[es] prescription medicines which result in health care liability claims.” The definition expressly excludes licensed pharmacists who are sued for other causes of action, including “for the sale of mishandled or defective products.” The pharmacy and pharmacists at issue in this case were accused of negligently compounding a batch of lipoic acid, which was later administered to the plaintiff in her physician’s office, allegedly causing her injuries. The Court undertook a lengthy analysis of the Chapter 74 definitions as well as those in the Texas Pharmacy Act and concluded that a pharmacist who prepares drug compounds for use in a physician’s office is “dispensing prescription medicines,” and not manufacturing or selling a product, and is therefore subject to Chapter 74. Plaintiffs had not served the defendants with an expert report as required under Chapter 74, so the trial court erred in refusing to grant the defendants’ motion to dismiss.

In the second case, Ness v. ETMC First Physicians, the Court examined the sufficiency of an expert report submitted in a case involving the death of a two-month-old child from pertussis (whooping cough). The trial court found the report sufficient, but the Tyler Court of Appeals disagreed and ordered the suit dismissed. The Supreme Court held that the trial court had not abused its discretion and remanded the case to the trial court for further proceedings. The expert had opined that (1) the standard of care would have required the ER doctor who first saw the child to order laboratory tests and prophylactic antibiotics, (2) had the ER doctor performed those tests they would have revealed the child had Bordetella pertussis “at a treatable stage,” and (3) had the child been timely treated with antibiotics, he would have had a 51% or better chance of survival. Other statements in the expert’s report, however, seemed to undermine those opinions, including that pertussis vaccination is important because “treatment is of little benefit to the person infected” and that antibiotics are recommended because they may “shorten the duration of infectiousness.” The defendants argued—and the Court of appeals agreed—that, read in its entirety, the expert report led to the conclusion that earlier administration of antibiotics would not have significantly increased the child’s chances of survival and that the report therefore failed to demonstrate causation. The Supreme Court disagreed, holding that the appellate court “did not fully credit” the expert’s statements supporting causation and that the trial court did not abuse its discretion in finding the report was a good faith effort to comply with Chapter 74’s requirements. The Court noted that the job of reviewing and sorting out the expert’s opinions and resolving any inconsistencies belongs to the trial court and that the trial court could have reasonably concluded that the expert adequately explained how timely treatment with antibiotics would have prevented the child’s death.

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Texas Supreme Court Opinions – 4/24/15 (Part 2)

Originally published by Rich Phillips.


Posted by Rich Phillips

As we reported last week, on April 24, 2015, the Supreme Court of Texas issued opinions in 13 cases. (Click here for the entire order list.) Scott reported on seven of the opinions yesterday. Here are the summaries for the other six:

  • 13-0053, State of Texas v. Clear Channel Outdoor, Inc. – In this condemnation case, the issue was the proper valuation of a billboard site that was condemned as part of the widening of the Katy Freeway in Houston. In a unanimous opinion by Chief Justice Hecht, the Court first held that the billboard structures were fixtures, not personal property, and that Clear Channel was therefore entitled to the value of the structures as part of its damages. The Court then held based on its decision in State v. Central Expressway Sign Associates, 302 S.W.3d 866 (Tex. 2009), that the income generated by the billboard structures could not be used to determine their value.
  • 13-0605Brown & Gay Engineering, Inc. v. Olivares – A drunk driver entered the Westpark Tollway by driving the wrong way on an exit ramp. He then caused a head-on collision with a car driven by Pedro Olivares, Jr, and both drivers were killed. Olivares’s mother sued Brown & Gay Engineering, the company that had contract with the Fort Bend County Toll Road Authority to design the road signs and traffic layout for the Westpark Tollway, subject to approval by the authority’s board. Brown & Gay filed a plea to the jurisdiction, arguing that it was protected by governmental immunity as an employee of a governmental entity. In an opinion by Justice Lehrmann (joined by Justices Green, Johnson, Boyd, and Devine), the Supreme Court held that governmental immunity does not extend to “private government contractors exercising their independent discretion in performing government functions.” Chief Justice Hecht concurred, but filed a separate opinion (joined by Justices Willett and Guzman) to express his disagreement with the majority’s analysis of the purposes of sovereign immunity.
  • 13-0926Lippincott v. Whisenhunt – In a per curiam opinion, the Court rejected the court of appeals’ holding that a communication must be “public” to be subject to the Texas Citizens Participation Act (an anti-SLAPP statute). While the TCPA requires that the communication “relate to a matter of public concern” it does not require that the communication be made publicly. The Court held that the court of appeals improperly “amended” the statute by requiring that the communication be public.
  • 13-0928In re Lipsky – This mandamus proceeding also arose from a case under the Texas Citizens Participation Act (TCPA). In a unanimous opinion by Justice Devine, the Court resolved a split among the courts of appeals about the the TCPA’s requirement that the plaintiff establish a prima facie case by “clear and specific evidence.” The Court held that this requirement does not impose a higher burden of proof or preclude reliance on circumstantial evidence. The Court then applied that standard and found that the trial court correctly dismissed some of the claims and correctly refused to dismiss the rest of the claims.
  • 13-0978JLG Trucking, LLC v. Garza - This case arises out of a car accident and the trial court’s exclusion of evidence of a second accident three months after the first, which the defendant contended was the cause of the plaintiff’s injuries. In a unanimous opinion by Justice Lehrmann, the Supreme Court held that the evidence of the second accident was relevant to the issue of causation of the plaintiff’s injuries. The Court rejected the court of appeals’ reasoning that there was no expert testimony to support the argument that the second accident caused the plaintiff’s injuries because the court of appeals conflated relevance and sufficiency. The court of appeals’ approach also improperly shifted the burden of proof to the defendant. The Court also found that the exclusion of the evidence was harmful error that required reversal.
  • 13-0048Rice University v. Refaey – In a per curiam opinion, the Court held that a peace office employed by a private university is an “officer or employee of the state,” and thus the university and the officer are entitled to pursue an interlocutory appeal from the trial court’s denial of their plea to the jurisdiction based on official immunity.

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Tuesday, April 28, 2015

Goodbye, earnest money.

Originally published by David Coale.

earnest moneyThe Songs deposited $361,200 as earnest money, toward the purchase of a $3.4 million apartment complex.  They then made the successful bid in an auction process, but backed out of the transaction and refused to close.  The Fifth Circuit affirmed the district court’s ruling that the seller could keep the money.  It found that the parties’ agreement had consideration, most notably in the seller’s commitment to review, consider, and accept the Songs’ bid.  It also found that the earnest money was a proper liquidated damages award for the Songs’ termination, finding that it “is reasonable and actual damages were uncertain.”

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2015.56: HB2777 Is Unconstitutional

Originally published by Mark Bennett.

House Bill 2777 (Herrero) purports to provide trial courts with broad authority to admit evidence of prior bad acts for the purpose of showing action in conformity therewith in many cases.

The statute would add an article 38.371, which would state, in pertinent part, that:

Notwithstanding Rules 404 and 405, Texas Rules of Evidence, evidence of other crimes, wrongs, or acts committed by the defendant against the victim of the alleged offense shall be admitted for its bearing on relevant matters, including:

(3) the character of the defendant and acts performed in conformity with the character of the defendant.

House Bill 2777 is a derivative of the Huffman Special, article 38.37 of the Texas Code of Criminal Procedure, and like article 38.37 it violates due process.

Article 38.37 purports to allow the admission of character-conformity evidence in cases involving alleged sex offenses against children. Abel Herrero’s article 38.371 would broaden the rule to apply to offenses against family members, complainants in dating relationships, people formerly in dating relationships, complainants who are or were in dating relationships with people with whom defendants are or were in dating relationships, and people living together. This is a solution looking for a problem. What’s more, it’s unconstitutional.

Admission of evidence for the purpose of demonstrating general character propensity violates due process.

Texas Rule of Evidence 404(b)(1) prohibits admission of “Evidence of a crime, wrong, or other act … to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.” House Bill 2777 purports to abrogate this rule in certain cases.

But even aside from Rule 404(b)(1), the admission of evidence to show the character of the defendant as proof of his conformity with that character violates the defendant’s right to due course of law under the Texas Constitution and due process under the United States Constitution. Admission of such evidence also violates the defendant’s right to trial by an impartial jury, his right to be informed of the nature and cause of accusations against him, his right to effective assistance of counsel, his right to be presumed innocent until proven guilty, and other rights guaranteed to him under established principles of law.

The existence of due process rights can be established by showing a settled historical usage in the United States and in England. In order to determine whether a particular right constitutes a portion of the “due process” accorded to a party, the Supreme Court of the United States has long held that historical precedent ought to be the principal guide. Murray v. Hoboken Land & Improvement Co., 59 U.S. 272, 276-7 (1856). The Court reaffirmed this principle in Hurtado v. California, 116 U.S. 516, 528 (1884), observing that if due process protections are to be any restraint whatsoever on legislative power, they must be understood to go beyond the current law of the land as embodied in statute.

A legal process, according to the Court, “must be taken to be due process of law, if it can show the sanction of settled usage in England and in this country.” Id. Much more recently, the Court has rearticulated the boundaries of due process rights as the “fundamental conceptions of justice which lie at the base of our civil and political institutions.” Dowling v. United States, 493 U.S. 342, 353 (1990). Here the Court cautions against judicial creation of new due process rights, but holds to the principle that historically-established rights should be respected.

Exclusion of Character-Propensity Evidence in History

The inadmissibility of character-propensity evidence is a long-settled rule in the common law of the United States and England. Thus, this principle bears the required ‘sanction of settled usage’ for consideration as a due process right.

In Pre-1776 England

Disfavor of character-propensity evidence is expressed in the common law of England over 300 years ago. In Hampden’s Trial (King’s Bench, 1684), Lord Chief Justice Withins discusses the exclusion of evidence of prior forgeries in a prosecution for forgery. In Harrison’s Trial (King’s Bench, 1692), Lord Chief Justice Holt famously interrupted the examination of a witness when propensity evidence was offered, exclaiming “Hold! Are you going to arraign his whole life? Away, away, that ought not to be; that is nothing to the matter.”

In Pre-Revolutionary America

Inadmissibility of propensity evidence was established early in the history of American jurisprudence. For instance, prior to the American Revolution, a Massachusetts court held that evidence of prior “bawdy” behavior at a residence was inadmissible in the defendant’s current prosecution for operating a house of ill repute. Rex v. Doaks, Quincy’s Mass. Reports 90 (Mass. Super. Ct. 1763).

In Post-Revolutionary America

The principle that character-propensity evidence must be excluded has been repeatedly recognized by U.S. courts throughout the country’s history. In Boyd v. United States, 142 U.S. 450, 12 S.Ct. 292, 35 L.Ed. 1077 (1892), the defendants were charged with murder following an attempt to rob, and the prosecution introduced evidence that the defendants had committed other robberies before the one involved in the crime charged. The Court, in an opinion by the first Mr. Justice Harlan, held the evidence of other crimes inadmissible: “Those robberies may have been committed by the defendants in March, and yet they may have been innocent of the murder of Dansby in April. Proof of them only tended to prejudice the defendants with the jurors, to draw their minds away from the real issue, and to produce the impression that they were wretches whose lives were of no value to the community, and who were not entitled to the full benefit of the rules prescribed by law for the trial of human beings charged with crime involving the punishment of death.” 142 U.S., at 458, 12 S.Ct., at 295. The opinion reaffirmed the principle that “[h]owever depraved in character, and however full of crime their past lives may have been, the defendants were entitled to be tried upon competent evidence and only for the offense charged.” Id.

In Brinegar v. United States, 338 U.S. 160, 174 (1949), the Supreme Court ruled in a whiskey smuggling case that evidence of prior similar acts was inadmissible. In so deciding, the Court noted that the standards it was applying were “historically grounded rights of our system, developed to safeguard men from dubious and unjust convictions, with resulting forfeitures of life, liberty, and property.” The Court went further in Michelson v. United States, 335 U.S. 469, 475 (1948), observing that “courts that follow the common law tradition almost unanimously have come to disallow resort by the prosecution to any kind of evidence of a defendant’s evil character to establish the probability of his guilt…. The state may not show defendant’s prior trouble with the law, specific criminal acts, or ill name among his neighbors, even though such facts might logically be persuasive that he is by propensity a probable perpetrator of the crime. The inquiry is not rejected because character is irrelevant; on the contrary, it is said to weigh too much with the jury and to so over persuade them as to prejudge one with a bad general record and deny him a fair opportunity to defend against a particular charge.”

In an opinion dissenting in part and concurring in part in Spencer, Chief Justice Warren noted that our jurisprudence indicates that character propensity evidence is offensive to due process:

While this Court has never held that the use of prior convictions to show nothing more than a disposition to commit crime would violate the Due Process Clause of the Fourteenth Amendment, our decisions exercising supervisory power over criminal trials in federal courts, as well as decisions by courts of appeals and of state courts, suggest that evidence of prior crimes introduced for no purpose other than to show criminal disposition would violate the Due Process Clause. Evidence of prior convictions has been forbidden because it jeopardizes the presumption of innocence of the crime currently charged. A jury might punish an accused for being guilty of a previous offense, or feel that incarceration is justified because the accused is a ‘bad man,’ without regard to his guilt of the crime currently charged.

Spencer v. Texas, 385 U.S. 554, 573-575, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967) (Warren, C.J., dissenting in part and concurring in part) (footnotes omitted).

Several United States courts have specifically held that admitting character-propensity evidence in a criminal trial can violate the defendant’s right to due process. After detailed analysis of the historical grounding of the right at issue, the Ninth Circuit Court of Appeals ruled in McKinney v. Rees, 993 F.2d 1378, 1385 (9th Circ. 1993) that the introduction of character-propensity evidence had rendered the defendant’s trial fundamentally unfair in violation of his due process rights. The First and Fourth Circuits have also characterized the rule prohibiting character propensity evidence as constitutional in dimension. See United States v. Ferrer-Cruz, 899 F.2d 135, 143 (1st Cir. Puerto Rico 1990) (“The prohibition against the introduction of “[e]vidence of other crimes … to prove the character of a person in order to show action in conformity therewith,” [is] mandated by Fed. R. Evid. 404(b) as well as due process …”); Lovely v. United States, 169 F.2d 386, 389 (4th Cir.1948) (“The rule which thus forbids the introduction of evidence of other offenses having no reasonable tendency to prove the crime charged, except in so far as they may establish a criminal tendency on the part of the accused, is not a mere technical rule of law. It arises out of the fundamental demand for justice and fairness which lies at the basis of our jurisprudence.”). Dissenting in Estelle v. McGuire, 502 U.S. 62, 79 (1991), Justice O’Connor reasoned that if introduction of propensity evidence served to relieve the prosecution of its proper burden to prove all elements of the offense beyond a reasonable doubt, then the introduction of such evidence must violate the due process clause of the Fourteenth Amendment.

Two circuits have held that due process is implicated by the admission of other crimes evidence, for purposes other than to show conduct in conformity therewith, in the absence of a limiting instruction. See Panzavecchia v. Wainwright, 658 F.2d 337, 341 (5th Cir.1981) (holding that it violated due process for the jury to hear “repeated references to the defendant’s criminal past without any limiting instruction to relate this evidence only to the firearm violation and to disregard it altogether in considering the murder count”); Murray v. Superintendent, Ky. State Penitentiary, 651 F.2d 451, 453 (6th Cir.1981) (noting that the Sixth Circuit has held that “[t]he logical converse of [Spencer] is that it is unfair and violative of due process if evidence of other crimes is admitted without a limiting instruction”). The clear import of these cases is that the influence of character propensity evidence on the jury is so prejudicial as to violate the constitution.

Cases Construing Statutes Permitting Character Propensity Evidence

Judicial acceptance of legislative changes to the propensity evidence rule does not mean that the principle of excluding propensity evidence has been abrogated, nor does it mean that protection of this right is no longer guaranteed by due process. At the very least, admission of such evidence is still governed by “general strictures” such as the requirement to weigh the probative value of evidence against its potential for prejudice. See United States v. Guardia, 135 F.3d 1326, 1331 (1998), affirming a trial court’s decision in a sexual assault trial to exclude testimony of four women who alleged that the defendant had sexually assaulted them in a fashion similar to the accusation.

Two states have struck down similar states, notwithstanding the judicial discretion to exclude unduly prejudicial evidence. The Supreme Court of Missouri declared a Missouri statute allowing admission of evidence of prior sexual crimes unconstitutional under the Missouri Constitution even though the statute contained a balancing clause similar to Federal Rule of Evidence 403. State v. Ellison, 239 S.W.3d 603, 607–08 (Mo. 2007). The court noted the long line of Missouri cases prohibiting admission of prior criminal acts as propensity evidence and held “[e]vidence of prior criminal acts is never admissible for the purpose of demonstrating the defendant’s propensity to commit the crime with which he is presently charged. There are no exceptions to this rule.” Id. at 606 (citation omitted).

Likewise, the Iowa Supreme Court invalidated the admission of evidence of sexual abuse of other victims pursuant to Iowa Code section 701.11. State v. Cox, 781 N.W.2d 757 (Iowa 2010). The court concluded that evidence of the “defendant’s sexual abuse of other victims under Iowa Code section 701.11 based only on its value as general propensity evidence violates the due process clause of the Iowa Constitution.” Id. at 772. However, such evidence could “be admitted as proof for any legitimate issues for which prior bad acts are relevant and necessary, including those listed in [Iowa Rule of Evidence] 5.404(b) and developed through Iowa case law.” Id. at 768.

The language of article 38.371(b)(3) is also found in Texas Code of Criminal Procedure article 38.37. No Texas appellate court has been called upon to determine whether Article 38.37 §§2, 2-A offends due process by permitting consideration of character propensity evidence. But Texas cases assessing the constitutionality of Section 38.37, §1(b) [permitting extraneous offense evidence committed by the defendant against the child who is the victim of the alleged offense to show the state of mind and relationship of the defendant and the child] have upheld this section because such evidence has relevance beyond character propensity. In Jenkins v. State, 993 S.W.2d 133 (Tex. App.-Tyler 1999, pet. ref’d), the court of appeals held that the provision was constitutional because it permits introduction of evidence relevant to several non-character-conformity purposes, such as to show “the states of mind of the defendant and child and their relationship;” to show “how one in a position demanding care and guidance of a related person, has failed in such duty and has adopted an unnatural attitude;” to “explain the charged act—an act that would otherwise seem wholly illogical and implausible to the average juror;” and to show “that a peculiar relationship exists, but also how and why the defendant achieved dominance over the child.” Id. at 135. This position was adopted by other courts. Brantley v. State, 48 S.W.3d 318, 329–30 (Tex.App.-Waco, 2001, pet.ref’d); Martin v. State, 176 S.W.3d 887, 900 (Tex.App.-Fort Worth 2005, no pet.).

One Texas court has implicitly held that a statute permitting consideration of character propensity evidence would run afoul of due process requirements. In Bush v. State, 958 S.W.2d 503, 505 (Tex. App.-Fort Worth 1997), the court rejected the appellant’s argument that article 38.36 of the Code of Criminal Procedure expands the admissibility of extraneous acts in violation of rule 404(b):

Article 38.36 merely codifies the age-old res gestae, or same transaction contextual evidence, exception and adds the catch-all phrases “relationship between the defendant and the deceased” and “state of mind of the defendant at the time of the offense.” These two phrases necessarily encompass intent, opportunity, motive, plan, scheme, identity, absence of mistake or accident and knowledge, as well as all other logical inferences which may arise from the previous dealings between the victim and the defendant. Therefore, we hold that article 38.36 does not expand rule 404(b) and, thus, does not offend notions of due process. 505 (emphasis added).

In sum, these cases demonstrate that the prohibition of evidence of general character propensity is so deeply embedded in tradition and historical jurisprudence as to create a substantive due process right. Accordingly, evidence of extraneous conduct for the sole purpose of general character propensity must be excluded on due process grounds, and House Bill 2777, which would purport to admit such evidence, is unconstitutional.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.

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