Stories of Recovery: There is an army out there to help you

Editor’s note: This post is part of the Texas Lawyers’ Assistance Program’s Stories of Recovery blog series. TLAP offers confidential assistance for lawyers, law students, and judges with substance use or mental health issues. Call or text TLAP at 1-800-343-8527 (TLAP) and find more information at tlaphelps.org.

After interviewing to move my solo practice to another firm, I celebrated at home with a “solo” bottle of wine. I tried to share the news with my wife, but I couldn’t complete a sentence without slurring. She took a video of me on her iPhone as I tried to re-explain what I had just told her about my interviews. That was a wake-up call.

While I had long dealt with depression, matters only got worse years earlier when my then-firm closed its office and I went solo. Solo practice was not only isolating, but financially terrifying. If clients slow-paid or didn’t pay at all, the food on my table, the tax payments, mortgage, private college tuition payments, and every other bill were literally at stake, too often leaving me working paycheck to paycheck. My family asked why we had to cut the corners off the corners we had already cut even when I was working around the clock seven days a week.

I dealt with that stress by self-medicating. As a solo I had nobody to answer to, so if I drank beer through the day while writing, well surely it was okay to calm my nerves so I could get my work done.

But alcohol didn’t solve my problems. Instead, it compounded my stress, loneliness, and anxiety. When I came home, it isolated me from my family. While I was physically “there,” I was also always somewhere else, mired in self-doubt, self-pity, fear, and self-loathing. My daily goal was to make it to bedtime to start yet another Groundhog Day upon waking.

So, back to the job interview. My wife’s video was a reality check. It confirmed that my drinking wasn’t really just to dull the pain of the bad but to celebrate the good and survive the mundane. So, whatever the day brought, if it ended in the letter “y,” I drank.

I knew I needed help. No question, it was difficult for me to summon the courage to call the Texas Lawyers’ Assistance Program, or TLAP, but when I did, the staff supported and encouraged me and reassured me there was a better way and that I did not have to go through things alone. The concept of lawyers living happily and thriving without alcohol intrigued me.

After embarrassing myself in front of my son one final time, I decided to go all in. I feared attending a cliche recovery meeting, but I knew it couldn’t be worse than my then day-to-day routine. When I joined a meeting by phone and introduced myself, the group applauded me for showing up, invited me back, and offered me support, without judgment, shame, or guilt.

Recovery is hard. But so is parenting, or dieting, or preparing for trial, or, quite simply, being a human being who is alive. In hindsight, I had put in an awful lot of “hard work” digging myself into a position where I had become a mental and physical train wreck. Now I am committed to investing the same energy to turning things around. The bottom line is that there are so many people out there just like me and just like you, who have suffered through the same experiences, and who have good advice, insights, and suggestions to help. We are everywhere— at the courthouse, the grocery store, the doctor’s office, stuck in traffic, or anywhere else you can imagine. The sad fact is that statistics bear that out. We are not pariahs but just humans who need help and help each other.

TLAP helped me find the courage to reach out and find a better and much more fulfilling way of life. My family life, health, and practice have improved dramatically after receiving help freely offered to me from absolute strangers who gave me no judgment or criticism but only support. Many have had it far worse than I could ever imagine, and I respect them so much for their courage and strength—they inspire me every day. If you think there is no hope, then I will boldly tell you that you are dead wrong. I hope you find the courage to make that first life-altering call. There is an army out there to help you once you do so and a whole new life that will be more rewarding than you could ever imagine.

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Precedential Precedent

2 recent opinions state basic principles about stare decisis in Texas:

• The Texas Supreme Court expressly adopted the “rule of orderliness” concept in Mitschke v. Faiva, No. 21-0326 (May 13, 2022), observing: “If one appellate panel decides a case, and another panel of the same court differently resolves a materially indistinguishable question in contravention of a holding in the prior decision, the second panel has violated the foundational rule of stare decisis. Affording stare decisis authority to the second case would be tantamount to eliminating stare decisis altogether, as nothing would stop a third panel from returning to the initial outcome, or going yet another way.”
• A recent concurrence by Justice Schenck reminded: “I will … simply note that under the doctrine of stare decisis courts are bound only by the holding and discussion necessary to the resolution of the case. Newman v. Minyard Food Stores, Inc., 601 S.W.2d 754, 756 (Tex. App.—Dallas 1980, writ ref’d n.r.e.).”

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Forum, Not Venue.

In a state-court maritime case, this clause: ” . . all parties agree that any legal action seeking relief for a covered dispute must be filed in either (1) the United States District Court for the Western District of Kentucky, or (2) the McCracken County Circuit Court in Paducah, Kentucky” was held to be an enforceable forum-selection clause rather than an impermissible venue-selection clause. Risher v. Marquette Transp., No. 05-21-00289-CV (June 8, 2022).

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Royalty Obligations on Free-Use Gas Redux

Co-author Brittany Blakey

Recall our recent post on Carl v. Hilcorp Energy Company from the U.S. District Court for the Southern District of Texas discussing the lessee’s royalty obligations on gas used off the premises in a market-value lease. See now, Fitzgerald v. Apache Corporation: Different judge; same district; similar facts, lease provisions, and contentions; same skunk at the royalty owner’s garden party; semi-similar reasoning.

The issue was whether Apache was paying royalty on the correct amount of gas used off-lease.

Fitzgerald conceded that whether gas is sold or used off-lease, her royalty was based on the market value, which requires the deduction of PPC’s. However, she was unable to explain how she could both be owed royalties on gas consumed in the post-production process and receive a royalty payment at market value for gas that is sold.

Fitzgerald conceded that her royalty payment for gas used off-lease would be subject to deductions. But if all gas used off-lease is consumed in PPC’s for gas that is sold, there is no amount of remaining gas used for which a royalty payment could be calculated. Therefore, Fitzgerald failed to explain how the gas consumed in the process could have a market value greater than zero. Said the court, she needed to allege:

• some amount of gas used off-lease,
• for which the market value amounts to more than zero,
• for which, when properly accounted, she would be entitled to a net gain of royalty payment.

Fitzgerald only alleged that Apache deducted PPC’s, and that Apache deducted costs that it was permitted to deduct from the market value of gas sold; thus, she did not allege that Apache underpaid her royalties for gas sold or used off the lease.

Without allegations to support that Fitzgerald was underpaid royalties, Fitzgerald failed to state a claim for breach. Even if her allegations were sufficient to state such a claim, she did not allege actual damages (an essential element of a breach of contract claim) resulting from the breach.

A musical interlude for the Carl’s, Fitzgerald’s, and others in the same juridical boat.

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Open Courts

After a powerful summary of Texas’s constitutional protection for court access and jury trial, the en banc court in Maypole v. Acadian Ambulance Service reversed the dismissal of a medical malpractice claim for alleged shortcomings in the required medical authorization form. A concurrence agreed with the result but not the scope of the majority opinion. No. 05-18-00539 (June 10, 2022).

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Intervention Interest

Certain app developers had a sufficient interest to intervene in an FLSA case against Anadarko when: “The plaintiffs … represented in their contracts with the Intervenors that they were ‘independent professionals’—somewhat in tension with the plaintiffs’ current litigation position that they were really Anadarko’s employees. More importantly, the plaintiffs agreed to arbitrate ‘every claim, controversy, allegation, or dispute arising out of or relating in any way to’ not only their relationship with the Intervenors, but also their resulting work placements with Anadarko.” Field v. Anadarko Petroleum, No. 22-20054 (June 7, 2022).

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A Sanctions Conundrum

Allegheny Millwork v. Honeycutt highlights a tension in some requests for sanctions–a request for a large amounts of attorneys’ fees can be inconsistent with the underlying claim that a position is not well-founded:

“While Allegheny’s counsel’s failure  o reconcile or even address that the case is disappointing, and thereby raises an issue of candor with the Court, we do not see it as sufficiently egregious to support a shifting of fees, and certainly not in the amount requested by NQS. Given this Court’s familiarity with its own opinion in Ninety Nine Physicians, a brief reference to the case in response to the attorney’s fee issue would have sufficed.”

No. 05-21-00113-CV (June 8, 2022) (mem. op.) (footnote omitted).

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