10 cases set for Oral Argument the first week of December – SCOTX.

The Supreme Court of Texas has ten cases set for oral argument December 4, 5, and 6th. The Court puts together very user-friendly summaries of the cases and issues, which I’ve included below. These will obviously be hot topics of conversation at the Thanksgiving dinner table, so settle in and take a look.

Of note, there are three different cases (in red) on breach of contract, fraud, and fraudulent inducement. These issues pop up commonly for litigators. Frequently, breach of contract claims are paired with fraud/fraudulent inducement claims. One party argues that the other breached the contract, or alternatively, lied about the contents of the agreement. Inevitably the parties are left to argue whether extrinsic evidence is admissible to establish breach/fraud or whether the parol evidence rule bars the evidence. These cases cover a range of issues on breach, fraud, and fraudulent inducement; they should be enlightening on a range of topics.

Also the Texas Citizen Participation Act (TCPA) has made its way back to SCOTX (in blue). If you’re not familiar with the TCPA then I envy you. This is not the first time the Court has considered TCPA, and I’m sure it will not be the last.

  1. Mercedes-Benz USA LLC, et al. v. Carduco Inc.
    •  In this case alleging fraud underlying a contract the issues are (1) whether reliance is precluded because the alleged misrepresentations conflict with the contract; (2) whether the contract’s merger clause disclaiming reliance precludes fraud; (3) whether evidence supports that each defendant had a disclosure duty or gave affirmative misrepresentations; (4) whether separate jury instructions should have been presented on each fraud theory; (5) whether the appeals court improperly sustained a spoliation instruction; and (6) whether the appeals court erred by remitting punitive damages, from $100 million to $600,000.
  2. Barrow-Shaver Resources Co. v. Carrizo Oil & Gas Inc.
    • In this challenge to the appeals court’s take-nothing reversal from a contract-breach and fraud verdict, the issues are (1) whether the court erred by considering a deleted provision from negotiations to interpret the contract and (2) whether the court erred by rejecting a fraud claim on reliance grounds based on an oral promise to act when the written contract omitted that.
  3. In the Interest of A.L.M-F., et al.
    •  The issue in this parental-rights termination appeal is whether the trial court erred by denying the mother’s jury-trial request in de novo hearing.
  4. Chambers-Liberty Counties Navigation District, et al. v. State of Texas 
    • Consolidated with case below
  5. In re Sustainable Texas Oyster Resources Management L.L.C.
    • In this contest over a lease by the navigation district to the oyster-production company, to use submerged land to grow and harvest oysters, the issues are (1) whether statute overcomes the district’s governmental immunity claim; (2) whether the district commissioners have authority to lease the land in this case; (3) whether the state properly alleged an ultra-vires claim against the commissioners for restitution; and (4) whether Sustainable Texas Oyster Resources has standing in this appeal.
  6. Baylor Scott and White, Hillcrest Medical Center v. Ruthen James Weems III
    •  The issue is whether a fraudulent-misdiagnosis claim falls under the health-care liability statute and requires a threshold expert-report requirement.
  7. University of Texas M.D. Anderson Cancer Center v. Lance McKenzie and Deborah Diver
    •  The issues are (1) whether M.D. Anderson used tangible personal property during surgery, defeating Anderson’s immunity defense, and, if so, (2) whether that use proximately caused the surgery patient’s death.
  8. The Dallas Morning News Inc. and Kevin Krause v. Lewis Hall and Richard Hall
    •  The principal issues in this challenge under the Texas Citizens Participation Act are (1) whether the Halls’ partner compounding pharmacy showed clearly and specifically that the newspaper’s report the company was under federal investigation was substantially false and (2) whether a reasonable reader would infer the pharmacy’s guilt from the newspaper’s reporting that included allegations in lawsuits, a federal investigation and the context of the broader controversy over compounding industry practices.
  9. International Business Machines Corp. v. Lufkin Industries LLC
    •  In this appeal from a jury finding for Lufkin on its claims for fraud and fraudulent inducement, the issues are (1) whether reliance was clearly disclaimed despite contract language that exchanges between IBM and Lufkin staffs about project goals and objectives “is the basis of our understanding”; (2) whether fraudulent-inducement damages preclude recovery for fraud; and, assuming liability for fraud and fraudulent inducement, (3) whether Lufkin proved its damages by legally sufficient evidence; (4) whether Lufkin suffered damages for contract breach; and (5) whether Lufkin is bound by incorporation of a clause limiting damages the trial court excluded because of a verification issue.
  10. Linda Ferreira v. Douglas W. Butler and Debra L. Butler
    •  The issue is whether a default is imputed to a probate applicant presenting a will that had been filed before but outside the requisite time restriction.


For the truly dedicated, the Court offers video and audio recordings of all Oral Arguments!


Where the blue wave crashed: Texas appellate courts

19 justices occupy the Dallas and Austin appellate courts, all republicans. 12 of those seats were up for election last night. Democrats won every single one of them. Now what?

Like it or not, judicial elections in Texas are a partisan affair. Little-known lawyers are elected (or appointed) because of their proximity to a political figure. And long-tenured, sitting justices are tossed out based solely on their party affiliation.

The benefits, or not, of such a system, are up for debate. See, e.g., “Judges Who Are Elected Like Politicians Tend to Act Like Them.” What is not up for date are last night’s results. The “blue wave” didn’t carry Beto to victory , but that wave certainly crashed hard in Texas appellate courts.

Take a look at two appellate courts for example, the Third Court of Appeals in Austin and the Fifth Court of Appeals in Dallas.

Fifth Court of Appeals (Dallas)

Prior to last night’s election all thirteen justices were Republican. Last night, eight of those seats were up for election. Democrats took all 8. A summary of races and outcomes:

  • Chief Justice*
    • Douglas Lang (former Place 11)
    • Robert Burns 
  • Place 2
    • David Evans (I)
    • Robbie-Partida-Kipness
  • Place 5
    • Craig Stoddart (I)
    • Erin Nowell
  • Place 9
    • Jason Boatright (I) 
    • Bill Pederson
  • Place 10
    • Molly Francis (I) 
    • Amanda Reichek
  • Place 11
    • John Browning
    • Cory Carlyle 
  • Place 12
    • Jim Pikl
    • Ken Molberg
  • Place 13
    • Elizabeth Miers (I) 
    • Leslie Osborne 

*Repubs, red; Dems, blue; Incumbent (I); winner, bold. You know the drill.

Eight out of thirteen. That turnover is remarkable. Politics aside, any organization that replaces almost two-thirds of its members is going to have serious shifts in institution and identity. It’s worth taking a moment to give a shout-out to staff attorneys and court staff who will keep the machine chugging along during this major transition.

Third Court of Appeals (Austin)

So too in Austin, all six justices are republican. Last night four of those seats were up for election. Again, Democrats took all 4.

  • Place 2
    • Cindy Olson Bourland (I)
    • Edwards Smith
  • Place 3
    • Scott Field (I)
    • Chari Kelly
  • Place 5
    • David Puryear (I)
    • Thomas J. Baker
  • Place 6
    • Mike Toth
    • Gisela D. Triana 

That turnover will have serious impacts on the court and those practicing in front of it in the near future.

So what does it all mean? 

On my college bookshelf I had a book titled “What does it all mean?” My roommate would often ask if I had finished the book and could finally reveal the comprehensive, unifying theory of the everything. I don’t think that I ever had a satisfying answer (or even finished the book). It is, nonetheless, almost always a fine question to ask: what does it all mean? I’ll offer (borrow) two takeaways: 1) the law should stabilize political upheaval, and 2) experienced appellate practitioners are as valuable as ever. 

“Judges are not politicians, even when they come to the bench by way of the ballot”

Whereas politicians must respond to the preferences of their supporters, judges must strive for objectivity and independence. Indeed, as Hamilton (again, borrowing from those smarter than myself) noted in Federalist 78:

This independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors, which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community

Behind closed doors many judges will tell you that politics have no place in the court room. Partisan elections are simply an accepted, though unwelcome, way of life. It defines how a judge gets to the bench, but not how she acts once she is there. To that effect, there will undoubtedly be changes. But how we actually practice law should remain constant. The law, not politics, will buoy the courts.

And, as a closing thought, D. Todd Smith’s observation over at Texas Appellate Law Blog, hits the mark:

In this new reality, I think the role of experienced appellate practitioners will be more significant than ever. We are most effective when we assist courts in understanding the case, the law, and how to reach a reasoned outcome faithful to both.

It is, regardless of political affiliation, a fascinating time to practice law before these courts.

How I learned to stop worrying and love the TAMES portal

The TAMES portal is a handy tool to track the status of appeals. Here are some of its most useful features.

Clients (and sometimes even attorneys) too often view the court of appeals as a black hole. The case enters, when and where it will pop out, or what it is doing in there, nobody knows!

Let there be light! The Texas Appellate Management E-File System or TAMES provides answers to these pressing questions. The TAMES portal is a handy tool to track the status of appeals. I’ve noticed that it is a little-known, underutilized resource among many attorneys. It can prove a valuable resource to ease your clients’ minds as well.

From the TAMES portal you can easily search (by name, filing number, court, date, attorney, etc.) and locate a case. From there, you have access to a wealth of information, including the following categories:

  1. Case name/Cause Number (and other basic information)
  2. Appellate Briefs
  3. Case Events
  4. Calendars
  5. Parties & Counsel

I want to key in on a couple of these categories and what they provide:

Appellate Briefs

 All filings by the parties and the court are accessible electronically. Briefs, motions, orders, and opinions are all available. If you need to locate, link, or access any of the relevant filings, you can do so right from the TAMES system. I’ve also found that this is a helpful resource for clients. They are able to go online and see that the case is indeed progressing despite the time between initial filing and final disposition. And the more intrepid clients can study the briefs themselves.

Appellate Brief

Case Events

This area provides a clean timeline of the case. When was the notice of appeal filed; when is the reply brief due; when did SCOTX receive the petition for review? TAMES answers all of those questions. Again, I find this is a helpful resource for clients. Additionally, when taking on a new case (or digesting an old one) this is usually the first step.

Case Event


What’s the court of appeals doing with my case?” Good question! The calendars portion of TAMES is a (small) glimpse into the inner workings of the court and where the case is in the process. You can see whether the case is at the briefing stage, it has been submitted to the court,  it is holding for some other reason, or any other event.


Check it out! 

In fairness, TAMES doesn’t take all the guesswork out of the appellate process. You’ll still at times get cryptic messages and puzzle over their meaning. However, the TAMES portal is an invaluable resource that sheds light on your appellate case. If you’ve not ever checked it out, go give it a try!

Telling a compelling story on appeal.

The First Court of Appeals in Houston overturned a $17.7 million verdict in the “Baylor bridge” drowning case. The case, Austin Bridge & Road, LP  v. Raquel Suarez, et al, is available here. The court held, in short, that workers’ compensation barred the negligence suit and there was no evidence of gross negligence against the contractor.

One of the interesting features of the opinion was the strikingly spartan rendition of facts regarding the worker’s death. Four sentences. That’s it.

Suarez, an employee of Derr & Isbell, performed steel work for the building of a bridge across the Brazos River in connection with the construction of Baylor University’s McLane Stadium (the Project). On January 28, 2014, Suarez was working on a “man-lift” supported on a barge on the Brazos River. He and his coworker Terry Watson—who was operating the man-lift at the time of the accident—were both wearing safety tethers, or “man-ties,” connecting them to the lift. The lift fell off the barge into the Brazos River. Watson was able to swim to safety, but Suarez was unable to free himself and drowned.

The brevity should signal the outcome of the case. In overturning a verdict in favor of a worker who suffered a horrific death, it may be best omit the traumatic details. The Appellees’/Plaintiffs’ Brief offered little more in the factual background section (waiting until later to reveal more facts).

While succinct writing is important, using facts to tell a captivating, persuasive story is critical. This case offers tailor-made facts to tell a compelling story.

Consider these chilling details from trial.

  • The water was cold and dark. Suarez could not see anything, descending disoriented and lost into the pitch black.

  • Suarez sank deeper and deeper, dragged downward by his safety vest.

  • He tried to hold his breath, lungs burning. But that would only last for so long. After about 90 seconds, conscious the whole time, his brain forced him to breathe. A reflex.

  • When he did, there was nothing but chilly, dark water; Suarez inhaled and immediately started coughing it back out. For more than two minutes Suarez sucked in water and tried to cough it back out at the same time.

  • This continued for five to eight minutes, burning, coughing and trying to breathe, until his brain finally ran out of oxygen and he died.

These are grim, moving facts.  These are the details, the stories, the trauma that trial attorneys are so good at getting out and persuading a jury with (clearly to great effect here given the size of the verdict). On appeal, the facts should be no less appealing. They should be sharpened, made an even more dangerous hook. 

Use the facts available to you to tell a compelling story on appeal. As legal-writing guru, Ross Guberman, instructs: “Show, not tell: let choice details speak for themselves.” Facts alone can’t win the case; you must still fool with the pesky law. But crafting a compelling story that gives the reader a reason to want to find for you can make the all the difference in how the law is applied.


Tyler Talbert practices law in Waco, McClennan County, Texas, with the firm Scanes & Routh. He focuses on appeals and appellate law and has practiced before numerous Courts of Appeal. Before becoming an attorney, he graduated from Case Western Reserve University School of Law and Baylor University. 

Trial Court must actually watch video before ruling on its admissibility.

In a case of some interest in the evidentiary/employment context, SCOTX released its opinion in Diamond Offshore Services Limited And Diamond Offshore Services Company, Petitioners V. Willie David Williams, Respondent. 

The underlying case was a personal injury suit for a workplace accident. The employer believed the employee was exaggerating and so hired a private investigator to follow and film the employee performing various physical activities. The trial court excluded the video without even viewing it. The jury returned a verdict for ten million dollars in favor of the plaintiff.

On appeal, the Supreme Court of Texas reversed, holding:

We hold that, except in rare circumstances not present here, when the admissibility of a video is at issue, the proper exercise of discretion requires the trial court to actually view video evidence before ruling on its admissibility.

The Court went one step further, conducting its own 403 analysis, holding that the video was admissible. Excluding the video without first watching it constituted an abuse of discretion and SCOTX reversed and ordered a new trial.

A clip of the excluded video is available here.* **

*Not actually the clip in question, but a strikingly relevant scene from The Office.

** Some mildly inappropriate language–forewarning for those children who are also avid readers of Texas Appellate Updates.

Tyler Talbert practices law in Waco, McClennan County, Texas, with the firm Scanes & Routh. He focuses on appeals and appellate law and has practiced before numerous Courts of Appeal. Before becoming an attorney, he graduated from Case Western Reserve University School of Law and Baylor University. 

Supreme Court of Texas releases ten opinions today (02/23/2018)

The Supreme Court of Texas released ten opinions today. I’ve included links and a cursory explanation of the cases (or topic). There are a couple of fascinating ones here, I’ll delve in to more at a later date.

  • In Re Marion Shipman
    • Analyzing the boundaries of compelling production, specifically as to electronic data and turning over all digital files.
  • In Re Andrew Silver
    • Defining “lawyer” for privilege purposes-extending it to patent agents.


Tyler Talbert practices law in Waco, McClennan County, Texas, with the firm Scanes & Routh. He focuses on appeals and appellate law and has practiced before numerous Courts of Appeal. Before becoming an attorney, he graduated from Case Western Reserve University School of Law and Baylor University. 

Economic Loss Rule bars recovery of contract-based damages under tort theories

The Third Court of Appeals  held today in United States Steel Corporation v. John H. Young, Inc. that the Plaintiff’s attempt to recover contract-based damages under tort theories failed as a matter of law.

The economic-loss rule limits the recovery of purely economic damages that are unaccompanied by injury to the plaintiff or its property in actions for negligence. Sharyland Water Supply Corp. v. City of Alton, 354 S.W.3d 407, 415 (Tex. 2011) “When the doctrine is applicable, a plaintiff cannot maintain a negligence cause of action against a defendant when its damages are only for economic losses caused by the failure to perform a contract.” Id. The purpose of the rule is to separate the law of torts from the law of contracts—to “delineate between tort and contract claims.” LAN/STV v. Martin K. Eby Constr. Co., 435 S.W.3d 234, 239-40 (Tex. 2014).

What is fascinating here is that Plaintiff’s counsel alleged several causes of action, including breach of contract, which would have allowed recovery of its economic damages. Plaintiff’s Petition included claims for (1) breach of express warranty; (2) breach of implied warranty; (3) breach of contract; (4) negligence; (5) strict product liability; and (6) violations of the Deceptive Trade Practices Act (DTPA).

After the evidence closed but before the jury charge, Plaintiff abandoned its (1) breach  of express warranty, (2) breach of implied warranty, and (3) breach of contract claims.  Only negligence, manufacturing-defect, and DTPA claims were submitted to the jury.

Plaintiff’s counsel could have properly put the liability question and corresponding damages in front of the jury by maintaining these cause of action. So why didn’t they? Plaintiff eliminated these claims to avoid the effect of warranty disclaimers and limitations on remedies. Plaintiff’s attempt to insulate its remaining claims from warranty disclaimers and limitation of remedies ultimately spelled defeat for the suit.

This case is an outstanding example of the tightrope trial attorneys walk. They are called upon to make case-altering decisions based on the facts and the law, and at times, take calculated risks in the best interests of their clients.

More broadly, this serves as a cautionary tale for the Plaintiff’s attorney seeking to maximize recovery. Throwing the book (DTPA, Negligence, Gross Negligence) looks great (and angry clients love it) but may be setting the plaintiff up for failure ultimately.

The Supreme Court of Texas enjoys a good Economic Loss Rule case and I fully expect for Appellees to take this one up. Given the straight-forward application of the law to these facts, I’d guess this result will stand.

Tyler Talbert practices law in Waco, McClennan County, Texas, with the firm Scanes & Routh. He focuses on appeals and appellate law and has practiced before numerous Courts of Appeal. Before becoming an attorney, he graduated from Case Western Reserve University School of Law and Baylor University.