1. In 2013 a panel of the Fourteenth Court of Appeals found itself compelled to rule that injury sustained by a hospital visitor's fall on a slippery floor was a health care liability claim, and that the visitor's lawsuit had to be dismissed because the Plaintiff had not filed an expert report explaining how the wet floor constituted medical malpractice, or rather more specifically, how the wet floor departed from the applicable standard of medical care. 



    Why did the panel reach the absurd conclusion that a wet floor is medical malpractice, and therefore required proof of malpractice by expert testimony under the Health Care Liability Act? It did so because it felt duty-bound to follow Texas Supreme Court precedent to the effect that a claim need not constitute a medical malpractice claim to be treated as such for purposes of a lawsuit brought against a health care provider, and therefore required a medical malpractice expert report. 

    In the meantime, a doctor who owned cattle that had been allowed to wander onto a rural road causing a collision sought dismissal of the lawsuit that the injured driver brought against him because no medical-export report regarding the cow-car-collision and the applicable standard of care had been filed. The attorney for the doctor, too, was just relying on Texas Supreme Court precedent, and zealously protecting the interests of his client, who happened to be a doctor. Or so the story went. 
      
    Finally, last Friday, the Supremes announced that an ordinary negligence claim is not a health care liability claim after all if it does not arise out of provision of healthcare. Therefore, the hospital visitor who slipped and fell was not required to file an expert report. Good grief. Why did it take so long for the Supremes to come to their senses and admit the obvious? Why did they only do so after the roaming-cow med-mal practice case had made the news, and exposed the level of absurdity of which tort reform, both legislative and judicial, had reached? 





    But in Fourteenth Court of Appeals got reversed in the process, and told that they -- rather than the Supremes -- had gotten it wrong. 

    The irony (if not absurdity): They were just following binding precedent from the Texas Supreme Court. As an intermediate court, they said, they did not have the authority to go against the Supreme Court. They were just following orders. They felt compelled to march in lock-step and become extras in a theater of the absurd. 

    Perhaps the roaming cows would not have come home to roost had the underlings on the inferior court been brave enough to say that the emperors had lost their wits and had no clothes. The Supremes would have had to affirm them.

    Perhaps the Fourteenth Court of Appeals should have mopped up the slippery-slope mess that med-mal litigation had become thanks to "tort reform", rather than merely griping, and -- in the case of the one justice on the panel who has since made it to the policymaking level and become one of the emperors with stare decisis powers - concur in the absurdity without writing a separate opinion. 


    Affirmed and Memorandum Opinion filed March 19, 2013.

    In The
    Fourteenth Court of Appeals
    NO. 14-12-00885-CV

    LEZLEA ROSS, Appellant
    V.
    ST. LUKE'S EPISCOPAL HOSPITAL, Appellee

    On Appeal from the 215th District Court
    Harris County, Texas
    Trial Court Cause No. 2010-75291

    M E M O R A N D U M     O P I N I O N

    Appellant Lezlea Ross appeals from the trial court’s interlocutory order dismissing her suit against appellee St. Luke’s Episcopal Hospital. The trial court dismissed the suit because Ross failed to file an expert report as required by Section 74.351 of the Texas Civil Practice and Remedies Code. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351 (West 2011).

    The sole issue on appeal is whether Ross’s claim based on a slip and fall occurring on the Hospital’s premises is a ―health care liability claim (HCLC) to which the expert-report requirement applies. Compelled by stare decisis, we hold that this claim is an HCLC, and we affirm.

    BACKGROUND

    Ross slipped and fell in the lobby of St. Luke’s Episcopal Hospital after visiting a patient.

    Ross brought this action against the Hospital and its maintenance and training contractor, Aramark Management Services L.P.

    After the Texas Supreme Court decided Texas West Oaks Hospital, LP v. Williams, 371 S.W.3d 171, 179–80 (Tex. 2012), the Hospital filed a motion to dismiss because Ross did not file an expert report explaining how the Hospital had breached a standard of care, or an expert report from a physician demonstrating how said breach caused Ross an injury. The trial court granted the Hospital’s motion, decreed that Ross’s claims against the Hospital were HCLCs subject to Chapter 74, dismissed with prejudice Ross’s claims against the Hospital, and ordered that Ross pay attorneys fees of $1,000. Ross filed a timely notice of appeal from the trial court’s interlocutory order. See TEX. CIV. PRAC. & REM.CODE ANN. § 51.014(a)(10) (West Supp. 2012).

    ANALYSIS

    In a single issue, Ross contends the trial court erred by granting theHospital’s motion to dismiss because her slip and fall claim is not an HCLC within the meaning of Chapter 74.

    Ross was not a patient at the Hospital; she did not have a physician-patient relationship with any health care provider at the Hospital. She was a visitor, injured in the lobby of the Hospital. Yet, the Texas Supreme Court instructs that these facts are irrelevant for purposes of determining whether Ross brings an HCLC.

    The Hospital, a health care provider, is the defendant. The Hospital is a defendant because of the condition of its floors in the lobby, not because of any act or omission related to health care—unless the decision to have polished floors is health care—which the Hospital does not allege here. Yet, the Texas Supreme Court instructs that a connection between the act or omission and health care is
    unnecessary for purposes of determining whether Ross brings an HCLC.

    Ross likely never imagined that, under the Texas Supreme Court’s construction, the plain language of the Texas Medical Liability Act would swallow her garden-variety slip and fall case. But it has. And, having failed to file an expert report as required by the Act, Ross owes the Hospital $1,000 in mandatory fees.

    Ross does not contest that an allegation that the floors are slippery is a ―safety-related claim. Ross does not attempt to remove her claim from the Texas Supreme Court’s construction of the requites of the Act: A claimant (plaintiff), a defendant health care provider, and a harm or loss (safety). Ross argues simply that this court should ignore Williams because to apply it demands that we affirm.
     
    Because the result in this case is absurd, Ross urges, this court should resort to TEX. GOV’T CODE ANN. § 311.021(3) (West 2005) (stating that the Legislature is presumed to have intended a ―just and reasonable result), to disregard the TexasSupreme Court decision on point. We are without such authority. See Lubbock Cnty., Tex. v. Trammel’s Lubbock Bail Bonds, 80 S.W.3d 580, 585 (Tex. 2002) (―It is not the function a court of appeals to abrogate or modify established precedent.
    That function lies solely with this Court. Generally, the doctrine of stare decisis dictates that once the Supreme Court announces a proposition of law, the decision is considered binding precedent. (citations omitted)). Thus, we must overrule her sole issue.

    CONCLUSION

    Having overruled Ross’s sole issue on appeal, we affirm the trial court’s order.

    /s/ Sharon McCally, Justice

    Panel consists of Justices Brown, Christopher, and McCally. (Brown, J., concurring without opinion).

    Footnotes:

    Ross testified by deposition that a man was buffing the lobby floor.

    See Williams, 371 S.W.3d at 188–89 (citing TEX. CIV. PRAC. & REM. CODE ANN. § 74.001(a)(13) (West Supp. 2012)). ―[A] claim need not involve a patient-physician relationship for it to be an HCLC.2 Id. at 189.3

    See TEX. CIV. PRAC. & REM. CODE ANN. § 74.001(a)(2).][3 See Williams, 371 S.W.3d at 186 (allegations pertaining to safety need not be ―directly related to health care‖).

    See id. at 184 (holding that ―safety in the context of the Act has the broadest meaning: ―untouched by danger; not exposed to danger; secure from danger, harm or loss‖ (quotations omitted)).

    See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(b)(1) (the trial court shall enter an order that awards fees and costs). During oral argument, the Hospital withdrew its request for fees on appeal.

    FOR FURTHER READING

    OUCH! THE EXPANDING DEFINITION OF HEALTH CARE LIABILITY CLAIMS UNDER THE TEXAS MEDICAL LIABILITY ACT AND WHY TEXAS TOOK IT TOO FAR




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  2. Lopez v. Rivas, 
    No. 01-14-00592-CV (Tex. App. - Houston [1st Dist] Apr. 30, 2015) 

    In an opinion issued April 30, 2015, a panel of the First Court holds that the parol evidence rule did not bar testimony regarding an oral promise by one sibling and his spouse to pay the other two siblings $20,000 each for their respective shares of a house valued at $60,000 that they had jointly inherited from their parents. 

    The general warranty deed recited that the conveyance was done for $10 dollars and other good and valuable consideration


    General Warranty Deed: Recitation of Consideration 
    In a memorandum opinion written by Justice Huddle, the panel holds that the testimony about the nature of this "other" valuable consideration did not contradict the language in the deed, and further holds that evidence of want or failure of consideration would be admissible anyhow. 
       
    As for the acknowledgment of receipt and sufficiency thereof recited in the deed, the court concludes that it pertained to the promise to pay the $20,000 each, rather than the actual payment thereof. Therefore, the trial court did not err in entering judgment against the sibling who took the house and did not compensate the others for their respective shares. 
      
    The liability of the sibling's spouse is not discussed separately. Huddle adds in a footnote that the statute of frauds had not been invoked as an affirmative defense to enforcement of the oral agreement regarding the two $20,000 payments for the two siblings' shares of the property.

    Opinion issued April 30, 2015

    In The
    Court of Appeals
    For The
    First District of Texas
    ————————————
    NO. 01-14-00592-CV
    ———————————
    HUMBERTO LOPEZ, JR. AND OLGA LOPEZ, Appellants
    V.
    MAYRA RIVAS AND LINDA LOPEZ, Appellees
    On Appeal from the 190th District Court
    Harris County, Texas
    Trial Court Case No. 2011-32028

    MEMORANDUM OPINION

    Appellees Mayra Rivas and Linda Lopez conveyed, by a general warranty
    deed, their respective one-third interests in their deceased parents’ property to their
    brother and sister-in-law, Appellants Humberto Lopez, Jr. and Olga Lopez. Two
    years later, Mayra and Linda sued Humberto and Olga, asserting that Humberto

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    and Olga orally promised to pay them each $20,000, plus interest, for their
    interests in the property in addition to the consideration of $10 recited in the deed.
    After a bench trial, the trial court entered a final judgment awarding Mayra and
    Linda damages in the amount of $20,000 each, plus interest. In their sole issue on
    appeal, Humberto and Olga contend that the judgment must be reversed because
    the parol evidence rule bars the trial court from considering Mayra and Linda’s
    testimony concerning Humberto and Olga’s oral promise that contradicts the
    express terms of the deed. We affirm.

    Background

    Humberto Lopez, Sr. and Delia Lopez were married and owned a home at
    7833 Dayton Street in Houston, Texas. After their death, the Dayton Street
    property devolved to their three surviving children—Mayra, Linda, and Humberto.
    Each of the three siblings executed an “Affidavit of Distributees” in which they
    stated that they each received a one-third interest in the property, which they
    valued at $60,000.

    Mayra and Linda conveyed their interests in the Dayton Street property to
    Humberto and Olga by general warranty deed in April 2009. The deed recites that
    Mayra and Linda granted, sold, and conveyed the Dayton Street property to
    Humberto and Olga “for and in consideration of the sum of TEN AND NO/100
    DOLLARS ($10.00) and other good and valuable consideration to the Grantor in

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    hand paid by Humberto Lopez and Olga Lopez . . . the receipt and sufficiency of
    which is hereby acknowledged.”
    Two years later, in May 2011, Mayra and Linda sued Humberto and Olga,
    asserting breach of agreement, fraud in a real estate transaction, restitution, and
    seeking attorney’s fees.1

    According to Mayra and Linda, Humberto and Olga
    orally agreed but failed to pay Mayra and Linda each $20,000 within one year, plus
    3.5 percent interest for their respective interests in the property. Mayra and Linda
    alternatively requested that in the event the trial court could not enforce their oral
    agreement, the trial court restore the ownership interests they held before executing
    the deed.2

    The trial court conducted a bench trial at which Mayra and Linda were the
    sole witnesses. They each testified that before signing the deed, Humberto and
    Olga had agreed to pay Mayra and Linda each $20,000 within one year, plus 3.5
    percent interest, and that they signed the deed in reliance on this promise to pay.
     1 Mayra and Linda also asserted a vendors lien under their “foreclosure” claim and
    requested that the trial court (1) order Appellants to provide an inventory of all
    inherited personal property and (2) “account for such personal property” that they
    “took possession of after their mother’s death [and was] no longer in Defendants’
    possession . . . .”
    2 Mayra and Linda also requested that (1) the trial court order Humberto and Olga to
    provide Mayra and Linda with an “accounting of all rental income and expenses
    from the Property since June 22, 2008, and to award [Mayra and Linda] two-thirds
    of the net rental income from the property” and (2) the trial court enter a
    temporary injunction enjoining Humberto and Olga “from spending or using for
    their own, personal benefit any of net rental income derived from the rental or
    lease of the Property.” 
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    Mayra and Linda also both testified that Humberto and Olga admitted that they
    were attempting to secure financing to make good on their oral promise.
    Specifically, Mayra and Linda testified that they received the following letter in
    which Humberto and Olga’s attorney stated:

    Dear Mayra and Linda: March 2, 2011
    It is my understanding that it will take several more weeks to
    complete and fund the loan, as the broker is still shopping for the best
    deal for them. Humberto wants to thank you for your patience and
    understanding . . . . As soon as they obtain the loan, all of you will sit
    down together to discuss how to amicably resolve any unresolved
    issues with your mother’s estate.

    The trial court admitted the letter.

    On April 15, 2014, the trial court entered a final judgment in favor of Mayra
    and Linda. The judgment states: “as a result of [Humberto and Olga’s] breach of
    contract and fraud in a real estate transaction, [Mayra and Linda] have sustained
    damages and that [Mayra and Linda] should recover damages and costs from
    [Humberto and Olga] jointly and severally.” The trial court awarded Mayra and
    Linda attorney’s fees and ordered Humberto and Olga, jointly and severally, to pay
    Mayra and Linda $20,000 each with prejudgment interest at 3.5 percent interest
    and post-judgment interest at 5 percent. Humberto and Olga filed a motion for
    new trial, which was overruled by operation of law. See TEX. R. CIV. P. 329b(c).

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    Discussion

    In their sole issue on appeal, Humberto and Olga contend that the trial court
    erred in admitting parol evidence of an oral promise to contradict or vary the terms
    of the general warranty deed. They argue that this error requires reversal because
    it “was the only evidence offered in support of the trial court’s judgment.”

    A. Standard of Review and Applicable Law

    When parties reduce an agreement to writing, the law of parol evidence
    presumes, in the absence of fraud, accident, or mistake, that any prior or
    contemporaneous oral or written agreements merged into the final written
    agreement. See DeClaire v. G & B Mcintosh Family Ltd. P’ship, 260 S.W.3d 34,
    45 (Tex. App.—Houston [1st Dist.] 2008, no pet.). Any provisions not set out in
    the writing are presumed to have been abandoned before execution of the
    agreement or, alternatively, they are presumed to have never been made. Id.
    Likewise, the parol evidence rule provides that the terms of a written contract
    cannot be contradicted by evidence of an earlier, inconsistent agreement. Baroid
    Equip., Inc. v. Odeco Drilling, Inc., 184 S.W.3d 1, 13 (Tex. App.—Houston [1st
    Dist.] 2005, pet. denied).
    The parol evidence rule is not a rule of evidence, but a rule of substantive
    contract law. Jarvis v. K & E Re One, LLC, 390 S.W.3d 631, 638 (Tex. App.—
    Dallas 2012, no pet.). Its applicability is a question of law that we review de novo.

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    Audubon Indem. Co. v. Custom Site–Prep, Inc., 358 S.W.3d 309, 316 (Tex. App.—
    Houston [1st Dist.] 2011, pet. denied).

    B. Analysis

    Humberto and Olga contend that the deed expressly states that the agreedupon
    consideration was $10. Therefore, they argue, the parol evidence rule bars
    consideration of evidence to contradict or vary that term. They contend that the
    statement in the deed that the consideration’s “sufficiency . . . is hereby
    acknowledged” supports their claim that the trial court could not consider evidence
    of the oral promise.3

     In contrast, Mayra and Linda contend that the trial court
    properly admitted parol evidence to show the amount of consideration referenced
    in the deed by the words “other good and valuable consideration.” We agree with
    Mayra and Linda.

    The parol evidence rule does not bar evidence of a consistent collateral
    agreement. Ledig v. Duke Energy Corp., 193 S.W.3d 167, 179 n.10 (Tex. App.—
    Houston [1st Dist.] 2006, no pet.). Thus, parol evidence may be used to clarify or
    explain the agreement. Tex. Builders v. Keller, 928 S.W.2d 479, 481 (Tex. 1996).
    In addition, we may consider parol evidence “‘to show want or failure of
    consideration, and to establish the real consideration given for an instrument.’”
    Audubon, 358 S.W.3d at 316 (quoting DeLuca v. Munzel, 673 S.W.2d 373, 376
     3 We note that Humberto and Olga did not raise the statute of frauds as a defense in
    the trial court or on appeal.

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    (Tex. App.—Houston [1st Dist.] 1984, writ ref’d n.r.e.)); see McLernon v.
    Dynergy, Inc., 347 S.W.3d 315, 335 (Tex. App.—Houston [14th Dist.] 2011, no
    pet.) (“[P]arol evidence is admissible to show want or failure of consideration and
    establish the actual consideration given for the instrument.”). Thus, we may
    consider parol evidence “to determine if consideration exists even though the
    parties have reduced their agreement to a writing which appears to be a completely
    integrated agreement.” Audubon, 358 S.W.3d at 316 (internal quotations and
    citations omitted).

    Here, we conclude that Mayra and Linda’s testimony concerning the oral
    promise was admissible to show the actual consideration given for the deed
    because it did not contradict or vary the deed’s terms. The deed states that, in
    addition to $10, “other good and valuable consideration” was given for the deed.
    Deeds ordinarily embody such recitals of nominal consideration and “other good
    and valuable consideration.” See, e.g., Averyt v. Grande, Inc., 717 S.W.2d 891,
    898 (Tex. 1986); Tatum v. Tatum, No. 14-11-00622-CV, 2012 WL 1795112, at
    *2–3 (Tex. App.—Houston [14th Dist.] May 17, 2012, no pet.); Troxel v. Bishop,
    201 S.W.3d 290, 294 (Tex. App.—Dallas 2006, no pet.). Therefore, evidence that
    establishes what the “other” consideration was is admissible to establish the true
    consideration given in the consistent collateral agreement and does not contradict
    or vary the terms of the deed. See ERI Consulting Eng’rs, Inc. v. Swinnea, 318

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    S.W.3d 867, 875–76 (Tex. 2010) (testimony of consideration was proper under
    exception to parol evidence rule because “if the parties agreed that the lease
    obligation was to be additional consideration for the buyout, then such an
    agreement was a consistent collateral agreement. Nothing in such an agreement
    would contradict the written contracts.”); Deluca, 673 S.W.2d at 376 (parol
    evidence admissible to explain provision of release concerning consideration);
    Tarrant v. Schulz, 441 S.W.2d 868, 869–70 (Tex. Civ. App.—Houston [14th Dist.]
    1969, writ ref’d n.r.e.) (where deed recited consideration of “$10 and other good
    and valuable consideration . . . parol evidence was admissible to show the true
    consideration or that there was no consideration given”).
    Humberto and Olga rely on Johnson v. Driver, 198 S.W.3d 359 (Tex.
    App.—Tyler 2006, no pet.), to support their contention that evidence of the oral
    promise was inadmissible. In Johnson, the defendant argued that the deed, which
    stated that the property was “granted, sold, and conveyed” “in consideration of ten
    dollars and other valuable consideration,” evidenced a gift. Id. at 361. The court
    of appeals held that the appellant could not introduce parol evidence to show that
    the conveyance was a gift, rather than a sale, where appellant did not argue
    ambiguity. Id. at 363–64. But, here, Mayra and Linda did not offer parol evidence
    to prove that the conveyance was a gift; rather, they offered evidence to show that

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    the phrase “other consideration” in the deed referred to a consistent collateral
    agreement. See id. Accordingly, Johnson does not support reversal here.
    Humberto and Olga also contend that evidence of the oral promise was
    inadmissible because the words “the receipt and sufficiency of which is hereby
    acknowledged” “memorialize[d] the grantor’s admission that the consideration,
    while not disclosed, was nevertheless satisfactory.” According to Humberto and
    Olga, these words also mean that Mayra and Linda acknowledged receipt of all the
    consideration they were provided and, therefore, no consideration can be
    outstanding. But, as Mayra and Linda point out, the consideration that was
    deemed sufficient and of which receipt was acknowledged was the promise to pay
    Mayra and Linda each $20,000 plus interest for their respective interests in the
    property. Therefore, we conclude that the phrase “the receipt and sufficiency of
    which is hereby acknowledged” does not render evidence of the oral promise
    inadmissible. We hold that the trial court did not err in admitting Mayra and
    Linda’s evidence of Humberto and Olga’s oral promise.

    We overrule Appellants’ sole issue.

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    Conclusion

    We affirm the judgment of the trial court.

    Rebeca Huddle
    Justice

    Panel consists of Justices Jennings, Higley, and Huddle.

    THE STATUTE OF FRAUDS WAS  NOT RAISED IN THE ANSWER 


    CASE STYLE ON APPEAL: Humberto Lopez, Jr. and Olga Lopez v. Mayra Rivas and Linda Lopez., No. 01-14-00592-CV (Tex. App. - Houston [1st Dist] Apr. 30, 2015) (Memorandum Opinion by Justice Rebeca Huddle
    TRIAL COURT CASE INFO:  Mayra Rivas and Linda Lopez vs. Humberto Lopez, Jr. and Olga Lopez; Harris County District Clerk Cause No 2011-32028; Judgment for Plaintiffs signed by Judge Patricia J. Kerrigan, presiding judge of the 190th District Court,


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  3. Opinion issued April 28, 2015

    In The
    Court of Appeals
    For The
    First District of Texas
    ————————————
    NO. 01-14-00329-CV
    ———————————

    FARIHA ASHFAQ, Appellant
    V.
    MOHAMMAD ASHFAQ, Appellee

    On Appeal from the 246th District Court
    Harris County, Texas

    O P I N I O N

    In October 2011, Fariha Ashfaq petitioned for divorce from Mohammad Ashfaq in a Harris County district court. With his answer, Mohammad proffered a Pakistani divorce decree and sought dismissal of the divorce action for want of jurisdiction based on the parties’ earlier divorce in Pakistan. After a bench trial, the trial court ruled that the Pakistani divorce was valid, dismissed the divorce action for want of jurisdiction, and treated the remainder of Fariha’s pleading as a post-divorce petition for division of assets, upon which it entered a judgment dividing the parties’ assets.

    Fariha appeals, contending that the trial court erred in dismissing her petition for divorce because: (1) Texas courts have sole jurisdiction over the parties’ divorce; (2) the Pakistani divorce should not be recognized in the United States as a valid divorce; and (3) Mohammad failed to comply with Pakistani law in procuring the divorce. She does not contest the division of assets. Finding no error, we affirm.

    Foreign marriages and divorce recognition as matter of comity 

    Background

    Fariha and Mohammad were married in Pakistan in December 2007. After the marriage, Mohammad spent a few months with Fariha in Pakistan, then returned to his home in Fort Worth. Fariha remained in Pakistan until June 2009, when she was granted a visa to join Mohammad and traveled to the United States. Fariha and Mohammad then lived together in Fort Worth as husband and wife.
    The union was not a happy one. In November 2009, Fariha and Mohammad went to Pakistan to attend a family wedding. Once they arrived, Mohammad had Fariha’s parents take Fariha to their home.

    3

    Fariha and Mohammad disagree about what happened after the separation. Mohammad testified that eight days later, he announced to Fariha his intent to divorce her, then informed the Chairman of the Union Council that he had divorced his wife. Mohammad had a divorce decree prepared and sent to Fariha’s parents’ home, where her brother received it. Fariha denied that Mohammad gave her timely notice of the divorce, but admitted to having received the divorce papers on November 23, before the divorce was final. Mohammad returned to the United States in late November 2009. He went again to Pakistan in September 2010 to marry another woman, who has since been admitted entry into the United States and lives with him in Fort Worth.

    Fariha returned to the United States in April 2010. She has resided in Houston ever since and did not have any contact with Mohammad before filing the divorce petition.

    At trial, Mohammad adduced evidence of the Pakistani divorce laws through an expert in Pakistani family law who was licensed to practice in Pakistan. The expert witness testified about the procedural requirements for divorce in Pakistan.

    An English translation of “Proceeding of Union Council under Muslim Family Law Ordinance 1961(7),” in evidence before the trial court, explains that, after the husband pronounces “talaq” (“I divorce you”) three times:

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    1. He provides a copy of the divorce deed to the wife.
    2. He gives notice to the Chairman of the Union Council, along with the
    divorce deed, that he has divorced his wife.
    3. The Chairman shall supply a notice for reconciliation to the wife.
    4. The Chairman shall constitute an Arbitration Council within thirty days for
    the purpose of bringing about reconciliation between the parties.
    5. The prescribed period is three months (90 days). The time period begins
    when the Chairman of the Union Council receives notice. If the Chairman
    does not constitute an Arbitration Council for reconciliation, or
    reconciliation efforts fail, or either party does not want reconciliation, the
    divorce shall become final after 90 days of such a notice.
    6. The Chairman will issue a divorce certificate.
    Mohammad’s expert testified that Mohammad complied with the Pakistani divorce
    Ordinance and opined that his divorce from Fariha is valid.

    Discussion

    I. Applicable Law and Standard of Review

    Subject-matter jurisdiction is essential for a court to have authority to decide a case; it is never presumed and cannot be waived or conferred by consent. See Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 76 (Tex. 2000); Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443–44 (Tex. 1993); see also Alfonso v. Skadden, 251 S.W.3d 52, 55 (Tex. 2008) (per curiam) (subject-matter jurisdiction cannot be waived and can be raised at any time). States, however, are not required to give full faith and credit to foreign country judgments; dismissal based on

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    comity is a matter of discretion. Acain v. Int’l Plant Servs., LLC, 449 S.W.3d 655, 659 (Tex. App.—Houston [1st Dist.] 2014, pet. filed); see Reading & Bates Constr. Co. v. Baker Energy Res. Corp., 976 S.W.2d 702, 714–15 (Tex. App.— Houston [1st Dist.] 1998, pet. denied). We therefore review the trial court’s ruling for an abuse of discretion. See Acain, 449 S.W.3d at 659.

    Generally, a trial court abuses its discretion if it acts arbitrarily, unreasonably, or without regard to guiding legal principles. Id. (citing Wagner & Brown, Ltd. v. Sheppard, 282 S.W.3d 419, 428–29 (Tex. 2008)). Recognition of a foreign judgment in the absence of due process constitutes an abuse of discretion. “[D]ue process requires that no other jurisdiction shall give effect, even as a matter of comity, to a judgment elsewhere acquired without due process.” Griffin v. Griffin, 327 U.S. 220, 228, 66 S. Ct. 556, 560 (1946), quoted in In re E.H., 450 S.W.3d 166, 172 (Tex. App.—Houston [14th Dist. 2014, pet. filed); see also Litvaitis v. Litvaitis, 295 A.2d 519, 522 (Conn. 1972) (“A decree of divorce will not be recognized by comity where it was obtained by a procedure which denies due process of law in the real sense of the term . . . or where the foreign court lacked jurisdiction.”).

    Because the parties tried the issue of the foreign decree’s validity to the bench, we review the propriety of the trial court’s evidentiary findings supporting the judgment, whether express or implied, through the standard applicable to those

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    proceedings. In a bench trial, the trial court determines the credibility of the witnesses and the weight to be given their testimony. Zenner v. Lone Star Striping & Paving, L.L.C., 371 S.W.3d 311, 314 (Tex. App.—Houston [1st Dist.] 2012, pet. denied); see also City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005). In resolving factual disputes, the trial court may believe one witness and disbelieve others, and it may resolve any inconsistencies in a witness’s testimony. Zenner, 371 S.W.3d at 314; McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986).

    In making credibility determinations, the factfinder “cannot ignore undisputed testimony that is clear, positive, direct, otherwise credible, free from contradictions and inconsistencies, and could have been readily controverted.” City of Keller, 168 S.W.3d at 820. The factfinder thus is not “free to believe testimony that is conclusively negated by undisputed facts.” Id. In matters involving factual disputes, however, a trial court does not abuse its discretion “if it bases its decision on conflicting evidence and some evidence supports its decision.” See Unifund CCR Partners v. Villa, 299 S.W.3d 92, 97 (Tex. 2009) (citing In re Barber, 982 S.W.2d 364, 366 (Tex. 1998)).

    II. Validity of Pakistani Divorce

    A. Effect of Texas domicile

    Fariha contends that Texas had sole jurisdiction over the divorce because she and Mohammad were domiciled in Texas at the time Mohammad initiated the

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    proceeding. Although Texas law incorporates the concept of domicile, it is not universally applied the same way throughout the world. See Williams v. North Carolina, 325 U.S. 226, 229, 65 S. Ct. 1092, 1095 (1945) (“Under our system of law, judicial power to grant a divorce—jurisdiction, strictly speaking—is founded on domicil.” (emphasis added)). Because Mohammad adduced evidence of the

    Pakistani divorce laws, any presumption that Texas law would govern the decree’s interpretation does not apply here. The question before the trial court was not whether the parties satisfied the statutory requirements to file a divorce petition in Texas, but whether to recognize the Pakistani divorce as a valid divorce that terminated the Ashfaqs’ marriage before Fariha filed her petition in Texas. Texas courts treat foreign law as a fact issue. Nguyen v. Nguyen, 355 S.W.3d 82, 89 (Tex. App.—Houston [1st Dist.] 2011, pet. denied). The party relying on such foreign law must therefore strictly plead and prove the law. Id.; see also TEX. R. EVID. 203 (providing that party who intends to raise issue concerning law of foreign country must give notice by pleadings or other writing and supply to all parties copies of any written materials that party intends to use at least 30 days before trial); see also In re Estate of Loveless, 64 S.W.3d 564, 575 (Tex. App.—Texarkana 2001, no pet.) (recognizing trial court’s right to take judicial notice of law of Honduras as evidence regarding validity of prior marriage,

    8

    based on selected provisions of Honduran law attached to purported wife’s motion for summary judgment, as requested by purported wife). With respect to residency, the Pakistani legal expert testified that the Ordinance applies to Pakistani residents. Residency, she explained, is satisfied as
    long as the parties have not relinquished their Pakistani citizenship when the divorce occurred, regardless of whether they live in another country, “whether permanently or for a fixed time.” It is undisputed that Fariha is a Pakistani citizen, and Mohammad testified that he has dual U.S. and Pakistani citizenship. Fariha did not present any controverting evidence. We hold that the trial court did not err in concluding that the Pakistani Union Council had jurisdiction over the divorce proceeding between Mohammad and Fariha.


    Tex. R. Evic. 203: Determination of Foreign Law
    Texas Rules of Evidence TRE 203: Determination of Foreign Law 

    B. Public policy

    Fariha also contends that the trial court should have held that the Pakistani
    divorce law is invalid because it denies due process and is fundamentally unfair.
    Inherent in the right to due process is “notice reasonably calculated, under
    all the circumstances, to apprise interested parties of the pendency of the
    action . . . .” Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314, 70
    S. Ct. 652, 657 (1950), quoted in Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80,
    84, 108 S. Ct. 896, 899 (1988). Mohammad’s expert witness distinguished the
    traditional Muslim talaq from the requirements for divorce under the Pakistani

    9

    Ordinance, which requires notice to the wife and the Union Council and authorizes
    the imposition of criminal penalties for failure to comply with those requirements.
    The Ordinance imposes a mandatory 90-day waiting period before the divorce is
    final to allow for reconciliation efforts during that period and facilitates these
    efforts by providing for constitution of an Arbitration Council for reconciliation
    upon request. The record contains conflicting evidence as to whether Mohammad
    timely served Fariha with notice of the divorce as required under the Ordinance,
    but Fariha admitted to receiving the notice before the divorce became final. We
    will not disturb the credibility determination supporting the trial court’s implicit
    conclusion that the procedure prescribed by the Ordinance satisfied due process.
    See Unifund CCR Partners, 299 S.W.3d at 97.

    In contending that the Pakistani divorce should be considered void for public
    policy reasons, Fariha relies on Aleem v. Aleem, 947 A.2d 489 (Md. App. 2008), in
    which the Maryland Court of Appeals declined to recognize as a matter of comity
    the validity of a divorce the husband obtained by appearing at the Pakistan
    Embassy and performing talaq in writing without any advance notice to his wife.
    Id. at 490. We find Aleem inapposite. Specifically at issue in Aleem was a dispute
    regarding the division of marital property, which is not involved in this appeal.
    Further, the Maryland appellate court decided that the talaq divorce was
    inequitable in the apparent absence of evidence of Pakistan’s “Dissolution of

    10

    Muslim Marriages Act, 1939,” which permits women to divorce under certain
    circumstances. See id. at 490 n.1 (explaining its understanding that “where that
    Islamic law has been adopted as the secular law of a jurisdiction, such as Pakistan,
    a husband has a virtual automatic right to talaq, . . . but the wife only has a right to
    talaq if it is in the written marriage agreement or if he otherwise delegates that
    right to her”). Through his legal expert, Mohammad proffered evidence of the
    1939 Act, which permits women to initiate divorce based on, among other things,
    the husband’s abandonment, polygamy, imprisonment, or mistreatment.
    At least one legal commentator has characterized the Pakistani divorce laws
    as providing an avenue beyond traditional Islamic law that can be used to
    safeguard and promote “the fundamental rights guarantees of contemporary
    constitutions and the modern ideas of social justice that have influenced them.”
    Karin Carmit Yefet, The Constitution and Female-Initiated Divorce In Pakistan:
    Western Liberalism in Islamic Garb, 34 HARV. J.L. & GENDER 553, 562 (2011).
    We also note that the U.S. State Department considers a Pakistani talaq divorce
    obtained pursuant to the Ordinance—as opposed to a “bare talaq”—as valid proof
    of marital status for immigration purposes, and it presumably recognized the
    validity of this particular divorce in approving the visa for Mohammad’s current

    11

    wife.1
     Accordingly, we hold that the trial court acted within its discretion in
    recognizing the Pakistani divorce as valid as a matter of comity.
    C. Compliance with Pakistani law
    Finally, Fariha contends that the Pakistani divorce is invalid because
    Mohammad failed to comply with the legal requirements for procuring it.
    Mohammad’s expert witness testified to the contrary: she averred that the divorce
    proceeding that Mohammad initiated complied with the law, and the divorce
    became final November 15, 2009.

    Mohammad testified that he (1) pronounced the triple talaq to Fariha,
    (2) sent a copy of the divorce to Fariha’s family home, where it was received by
    her brother, and (3) sent notice to the Union Council chairman before he left
    Pakistan. Within the 90-day period before the divorce was final, Fariha’s parents
    went to Mohammad’s family’s house and were given Fariha’s personal effects,
    including the “maher,” a fixed dowry payment owed upon divorce, and the jewelry
    also given as dowry. The expert witness testified that Fariha’s acceptance of the
    maher payment equates to acceptance of the divorce.

    For the first time on appeal, Fariha points to discrepancies in the dates and
    other perceived flaws in the contents of the divorce documents. However, she did
    not present any expert testimony in the trial court to support the conclusion that
     1 See U.S. DEP’T OF STATE, BUREAU OF CONSULAR AFFAIRS, Pakistan Reciprocity
    Schedule: Documents—Divorce Certificates.

    12

    those flaws render the divorce invalid, nor is there any other evidence to controvert
    the analysis and opinion from Mohammad’s expert witness that the divorce is
    valid. Moreover, Fariha does not counter Mohammad’s argument at trial that
    Fariha’s acceptance of the maher estops her from denying the validity of the
    divorce. See Leedy v. Leedy, 399 S.W.3d 335, 339–40 (Tex. App.—Houston [14th
    Dist.] 2013, no pet.) (party who accepts and retains benefits of judgment is
    thereafter estopped to assert its invalidity); Richards v. Richards, 371 S.W.3d 412,
    (Tex. App.—Houston [1st Dist.] 2012, no pet.) (same). We hold that the trial court
    did not err in concluding that the divorce complied with the applicable legal
    requirements.

    Conclusion

    We hold that the trial court acted within its discretion in dismissing the divorce action for lack of jurisdiction. We therefore affirm the judgment of the trial court.

    Jane Bland

    Justice

    Panel consists of Justices Keyes, Bland, and Massengale.

    First Court of Appeals April 28, 2015 Opinion Release Page (partial snip) 


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  4. Lawfirm for Cypress Creek EMS goes to court seeking emergency order to undo mistake in release of documents under the Texas Public Information Act (Open Records Act).

    4/23/2015 11:53PM UPDATE: The application for temporary restraining order was heard by Judge Tad Halbach, serving as ancillary judge for emergency matters this day, who granted it, with hand-written changes, ordering Dolcefino to retain the package of documents mailed to him (rather than return them to the CCEMS's law firm), not to disclose or disseminated their content, and bring them to the temporary injunction hearing set for May 4, 2015 at 3pm. To make the TRO effective, CCEMS was required to post a $500 bond. 



    CYPRESS CREEK EMS vs. DOLCEFINO, WAYNE & DOLCEFINO CONSULTING
    Cause No. 2015-23275 in Harris County District Court

    In its pleading, filed April 23, 2015, CCEMS says that unredacted confidential documents with sensitive information were mailed to Dolcefino in error by its lawfirm on Monday April 20, 2015, and asks the court to immediately prohibit Dolefino from opening the packages, and that he and his company be restrained from reviewing, discussing, copying, transmitting, disseminating, or publishing any information contained in the packages received since April 20. 



    It appears that the documents relate to law enforcement activities and the entity's tactical unit ("Advanced Tactical Team"). CCEMS claims the documents sought by Dolcefino are excepted from disclosure and has sought a ruling by the open records division of the Attorney General's office, but sample documents submitted to the AG's office together with the request for a ruling to the effect that CCEMS may withhold the documents were mailed to Dolcefino also, - without redaction of the information claimed to be sensitive and protected.  

     Affidavit in Support of Application for TRO
    against Wayne Dolcefino over SWAT records



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  5. The Annual Statistical Report for the Texas Judiciary has just be published as a single book-like pdf document (a little later in the year than the previous edition, but with enhanced features and improved, user-friendly presentation). It is available for download free of charge from the Texas Judiciary's new website. 

    The Annual Report is published by the Office of Court Administration (OCA) and is a veritable treasure-trove of data on the Texas judicial system at all levels, including caseload trends in the trial courts, broken down by case type and type of court; appellate case disposition patterns and opinion production the courts of appeals; and outcomes of appeals taken to the Texas Supreme Court and Court of Criminal Appeals and decided on the merits. The reporting period is the fiscal year, not the calendar year.


    Highlights from this Year's Annual Report 



    The Annual Report for Fiscal Year 2014 is 136 pages long and
     contains numerous high-quality graphics, tables, and 
    charts that visualize the statistical information
    and make it much easier to comprehend.

    See examples below: Appeals and top counties from which they originate, and timeline chart of number of cases decided by the Texas Supreme Court over the last two decades.




    SUPREME COURT PETITION FOR REVIEW GRANTS
    HOUSTON COURT OF APPEALS IN SECOND PLACE
    AFTER CORPUS CHRISTI 

    Add caption
    HOUSTON COURT OF APPEALS WORKLOAD STATS  


    See prior blawg post for --> opinion production broken down by  
    dissents and concurrences by justices of 1st and 14th Court of Appeals 
    in comparison. 



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  6. In one of his first official acts as a member of the First Court of Appeals, freshman Justice Russell Lloyd on January 15, 2015 denied a motion to transfer a case from the First to the Fourteenth Court of Appeals, which was filed to avoid a conflict of interest. The motion was not objected to by the other party in the appeal. Both appellate courts sit in Houston, and hear cases from the same counties, which are assigned randomly to one or the other.  
     
    Attorney Orjanel Lewis requested the transfer after an appeal in which his firm - RADACK AND BORUNDA, P.C. -  represents a medical malpractice plaintiff who had summary judgment entered against her by a Harris County District Court was assigned to the First Court of Appeals. The transfer was sought because Jeremy Radack, a name partner and shareholder of the law firm that handles the appeal for the unsuccessful plaintiff in the trial court, is the son of Sherry Radack, the First Court's Chief Justice.


    In denying the motion in a short order, Judge Lloyd acted individually, rather for the court. He did not give a reason, other than to cite to the rules governing transfer, disqualification, and recusal.

    Order Denying Motion to Transfer case issued by Justice Russell Lloyd

    Image of motion to transfer appeal to avoid conflict of interest based on family relationship

     RADACK AND BORUNDA, P.C. - Public Information 

    Attorneys are notoriously loath to file recusal motions against sitting judges because they do not want to question the impartiality of a judge before whom they may appear in the future, and make themselves unpopular.

    Justice Russell Lloyd took office January 1, 2015, replacing Jim Sharp, who lost his re-election bid. Justice Lloyd does not yet have an official biography on the First Court of Appeal's website (as of 1/21/2015).  Attorney Russell T. Lloyd's profile on file with the State Bar of Texas was last certified on 04/17/2014 and reflects that he practiced law as a solo. He received his law license in 1978 after earning his law degree from the University of Texas that same year. Judge Lloyd's LinkedIn profile provides much more detailed information about his background.






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  7. Attorney and State Representative Ronald E. Reynolds in yet more legal trouble: Client turns tables, gets another lawyer, and sues Reynolds   

    State Representative Ronald E. Reynolds, who is battling charges of barratry, more commonly known as ambulance-chasing, in Montgomery County, just got another case added to his active docket. This one, too, is a case in which he finds himself as the defendant, albeit in a civil suit, rather than a criminal one. Reynolds, a personal injury attorney, is being accused of having injured a client, -- injured a client financially -- that is. The client is now suing Reynolds and his lawfirm. Not for barratry, but for allegedly settling her auto-PI case without her knowledge or consent, and for keeping the settlement funds. That, according to a lawsuit filed January 15, 2015  in Harris County District Court alleging fraud, breach of fiduciary duty, and legal malpractice.

    Earline Murry vs Ronald E Reynold, Cause No. 2015-02344 in Harris County District Court (Houston)


    The plaintiff alleges that her signature was forged on the settlement check issued by the insurance company in the amount of $7,350, and that she did get any of the money. In her petition, she seeks punitive damages in addition to actual damages, and asks for a trial by jury.

    The case is numbered 2015-02344 and was assigned to the 189th District Court, which is presided over by Judge Bill Burke. The plaintiff is represented by GALOW & SMITH, P.C., an Austin-based lawfirm. A junior attorney, Justin Studdard a/k/a  Justin Eugene Studdard, who received his law degree from Texas Southern University in Houston in 2012, signed the petition.

    Earline Murry vs Ronald E Reynold, Cause No. 2015-02344 in Harris County District Court (Houston)

    OP - 2015-02344 MURRAY, EARLINE vs. REYNOLDS, RONALD E- Civil MALPRACTICE - LEGAL - Snip of fact section in petition

    NOTE: This is a report of the filing of a civil lawsuit and the allegations made in the petition. The "facts" stated in legal pleadings are merely allegations. Although facts must be pleaded in good faith, it is the purpose of the court proceeding to find out if they are true, and whether they entitle the plaintiff to a remedy, typically in the form of money damages, and if so, in what amount.




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  8. Tony's Vallone's restaurant company sued over tow of cars parked by Lakewood Church worshipers at his restaurant in Greenway Plaza on a Sunday 

    Five people who say their cars disappeared while they attended Sunday services at Lakewood Church in August 2013 have brought a lawsuit against Timmons Restaurant Partners, LTD for wrongfully towing their vehicles parked near Tony's at 3744 Richmond Ave.

    In addition to naming the restaurant company, the plaintiffs bring claims against Meyerland Collision & Towing, Inc. and Apple Towing. Tony Vallone is named in the petition as agent for service, and is not being sued as an individual.



    In their complaint, filed yesterday (12/29/2014), the churchgoers seek to recover reimbursement of expenses incurred for towing and storage, statutory fees and damages, and litigation expenses including attorney's fees.

    The plaintiffs are bringing the civil action as a class action, to allow for inclusion of others who also had their vehicles removed while attending church but did not pursue legal recourse as co-plaintiffs. The named plaintiffs claim in their original petition that more than a dozen people were stranded in the mid-summer heat after they came out from the church and found that their vehicles were gone.

    Lakewood Church attendees' complaint about having their cars towed on orders of Tony's Restaurant 
    The lawsuit was filed electronically with the Harris County District Clerk and was assigned to the 11th District Court, presided over by Judge Mike D. Miller. The aggrieved church-goers are represented by The Webster Law Firm, with Omar R. Chawdhary shown as attorney in charge.

    It should be noted that facts stated in court pleadings are just allegations and that most need not even be denied specifically once a defendant has been served and are required to file an answer.

    To enhance their exposition of the facts in this case, the plaintiffs attorneys inserted two photographs of the location from which the vehicles were allegedly towed. Inclusion of images is not a common litigation practice for initial pleadings.


    CASE INFO: Cause No: 2014-74250 Daniel E. Timmins et al vs. Timmons Restaurant Partners LTD, et al, pending in Harris County District Court, 11th Judicial District.


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  9. The 2014 Annual Statistical Report on the Texas Judiciary has not yet been released, but much of the new data for the fiscal year that ended Aug 31, 2014 is already available on the Office of Court Administration's website, including productivity stats.

    So how did the members of the two Houston-based courts of appeals compare this year?

    14TH COURT OF APPEALS: CHIEF AS LEADING DISSENTER  

    On the Fourteenth Court of Appeals, the annual opinion output ranged from a low of 84 to a high of 163 (leaving aside the 12 opinions written by Justice Jeff Brown before he received his promotion to the Texas Supreme Court from the Governor). The most productive member was Justice Tracy Christopher, whose jurisprudence also included a combined total of 13 dissents and concurrences, the second highest number of such opinions after Chief Justice Kem Thompson Frost, who took the lead with 21. With a total of 80, Justice Christopher also authored the highest number of signed original opinions on the merits. The number of per curiam opinions was relatively even across the membership of this court, with slightly over 70 per justice except for those who were not on the court for the entire fiscal year. Dissenting and concurring opinions were much rarer for other members of this court, but each penned at least one separate opinion. The tally for the court as a whole was 1,220 for Fiscal Year 2013-2014. Its share of all concurring and dissenting opinions was much higher than its share of the statewide caseload, making the fourteenth an interesting court to watch.



    1ST COURT OF APPEALS: CHIEF WRITES THE MOST OPINIONS, KEYES AGAIN TAKES HONORS AS CHIEF DISSENTER  

    On the First Court of Appeals, the most prolific opinion-author was Chief Justice Sherry Radack, with a total of 207, none of which were dissents. Chief Radack took the lead in original opinions on the merits (122) as well as per curiam opinions (84). Justices Bland and Keyes came in second and third, with totals of 156 and 154, respectively, closely followed by Justice Harvey Brown, with 151.

    The least productive justices on this court -- at least as gauged by the official metric -- were Rebeca Huddle and Jim Sharp. Sharp came in last with only 110. (Sharp since lost his bid for re-election; he was the only incumbent among the courts of appeals who was defeated in the November 2014 general election.). It may come as something of a surprise that the only Democrat on the court penned only 4 dissenting opinions. Going into the re-election contest, Sharp touted himself as a different voice on the court, and campaigned with the slogan "BALANCED JUSTICE IS A GOOD THING". But as now revealed by the OCA's official tally, his Republican colleague Justice Evelyn Keyes found much more frequent occasion to disagree with her fellow Republicans on the court than Democrat Sharp, and went to the trouble of articulating the basis of her divergent views of the issues presented by appellants and appellees by setting them forth in separate opinions. Some justices merely note their disagreement, or concur only in the result, without saying why. Justice Keyes handed down 12 dissents and 6 other separate opinions, more than three times as many as Maverick Sharp. Keyes was also the most prolific dissenter in the previous fiscal year that ended August 31, 2013. See prior post on Who Dissents the Most on the Houston Courts of Appeals (based on the Annual Report for the 2013 Fiscal Year).

    The total number of opinions the First Court of Appeals issued in fiscal year 2014 was 1,290, which is slightly higher than the annual caseload processed and disposed of with opinion by its sister court in the same time span.



    SOME CAVEATS, CAUTIONS, AND COMMENTS ABOUT OPINION-COUNT AS A YARDSTICK OF APPELLATE PRODUCTIVITY  

    It is assumed that counting and reporting procedures are consistently applied to all members of the court. But there are potential sources of error or of debatable coding and counting, particularly in relation to one-page orders and opinions. Should they be counted and aggregated with long merits opinions or not? Also, mediation referral orders are longer than some opinions, but are basically templates. They are nevertheless typically issued in the name of justices, which is also true of other procedural orders. As such, they should not count as part of a justice's productivity. It is not clear if any such orders are counted and reported to the Office of Court Administration, and whether any opinions, which often even shorter, are deleted from the count.

    On the other hand, sometimes a procedural matter and resultant order is complex enough to merit being counted as an opinion, while some opinions -- especially routine dismissal opinions based on non-payment or failure to file a brief and denials of mandamus petitions -- do not merit being regarded as opinions for statistical purposes at all, especially not as a measure of productivity. They are simply not the equivalent to an opinion that resolves a legal issue and gives guidance to courts below and practicing attorneys in future cases. At least they should not be lumped into the same category as merits opinions that have substantive content even if they are not reported in the Southwestern Reporter and are  not precedent-setting.

    Comparability of aggregate opinion counts across the fourteen courts of appeals is also somewhat doubtful. The Houston Courts of Appeals now issue many more orders online (on the dated opinion/order release pages) than they used to.

    Sample Opinion/Order Release Page - 14th Court of Appeals
    New layout after recent court website redesign and
    migration to new domain / URL
    Other courts of appeals have other practices which may extend to the manner in which they classify opinions/orders for statistical purposes in addition to decisions as to what gets displayed and hyper-linked on the pages featuring daily releases. Variation in classification practices may affect the statistics for an entire court relative to sister courts. Comparisons of productivity measured by numbers of opinions reported by or on behalf of different appellate courts are accordingly not necessarily completely reliable. The same problem would affect a comparison of the total number of orders and opinion issued on the courts' websites on opinion release dates.

    Another problem affecting comparability, though relatively minor, are appellate opinions that resolve several cases which are consolidated for briefing or are companion cases. They appear as an opinion on the docket for each case, but they are really just one opinion.

    A better measure of productivity would be one that is sensitive to the length of opinions measured by pages (of the pdf files) or number of words (a metric already required for e-briefs to enforce length limitations), rather than merely the bare count without any differentiation as to short vs. long, and complex vs. routine. Complexity cannot easily be quantified, of course, but length should make for a suitable proxy; -- one that can be implemented in a consistent and reliable fashion by purely technical means with no subjective component whatever.

    Another measure to enhance comparability, and make aggregate numbers more meaningful in representing amount of work, time, and effort, would be to strictly exclude from the count all one-page and two-page orders and opinions (such as dismissal orders and orders denying mandamus relief in one sentence or two), as well as form/template-based orders even if they exceed two pages. This criterion could be supplemented with a provision that allows the assigned justice to designate an opinion or order that would not otherwise qualify to be counted to nevertheless be exempted from the cut-off and be counted as "non-routine" for case-specific reasons despite brevity, or as useful as guidance for other appellate practitioners. This special designation could also be shown on the opinion release page on the relevant date as an additional value in the data field that currently identifies the released items as memorandum opinion, signed opinion with author's name, or "order" under the "Case Number" column header.

    EXAMPLES OF ROUTINE ONE-PAGE AND TWO-PAGE "OPINIONS" 

    Example of  2-sentence Memo Op - Denial of Petition for Habeas Corpus relief 
    Examples of two-page "Opinion" dismissing case for nonpayment of fees
    Example of single-page opinion dismissing appeal
    per agreement of the parties 
    FOR COMPARISON: OPINION PRODUCTION BY THE TEXAS SUPREME COURT IN FY2014 WAS MUCH LOWER, COMPARED TO THE INTERMEDIATE COURTS, REFLECTING DISCRETIONARY REVIEW 

    Opinions of the Texas Supreme Court by Justice (FY 2014)
    Opinions written by Texas Supreme Court Justice in FY2014: Total of 115 ranging from 7 to 12 among members. 

    KEY TERMS: Texas Courts of Appeals, appellate statistics, appellate opinions, Houston courts of Appeals, First Court of Appeals, Fourteenth Court of Appeals, Texas Supreme Court, disposition patterns, dissents and concurrences, measuring court productivity, methodological issue, quantifying justice.



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  10. 2014 APPELLATE RACES: REPUBLICANS KEEP TIGHT GRIP ON HIGHEST COURTS, AND WIN ALL BUT ONE COURT OF APPEALS RACE   

    Republicans remain firmly in control of the state's two highest courts and courts of last resort: Supreme Court of Texas and Court of Criminal Appeals. The members of both courts are elected statewide.

    SUPREME COURT AND CCA RACES: WIDE MARGINS OF VICTORY 

    In the Supreme Court races, three of the Republican incumbents did better than Greg Abbott in this bid for the governorship, but only in terms of winning percentages. The raw vote totals for the judicial candidates were lower, except for Phil Johnson, who did not draw a Democratic challenger. The same pattern holds for the CCA. The candidates who did not draw a Democratic opponent garnered higher total vote numbers, and a higher percentage of the vote than the successful Republican contender in the gubernatorial race.


    Chief Justice Nathan Hecht, the longest-serving member of the high court for civil and juvenile cases, won with 59.57% of the vote; Associate Justice Jeff Brown won with 60.31%; Justice Jeff Boyd garnered 58.88%; and long-time Associate Justice Phil Johnson won with 78.78%  -- the highest margin -- in a race that did not have a Democratic contender.

    Complexion of Tex. Sup. Ct. won't change as a result of 2014 election 
    Texas Supreme Court Membership Roster (2014)
    On the Court of Criminal Appeals, Kevin Patrick Yeary won with 76.29% of the vote in a contest that did not feature a Democratic opponent, giving minor-party candidates a chance to test their ability to pick up part of the Democratic vote; David Newell won with 78.28% in a race that likewise featured only a Libertarian and Green candidate, but no Democratic opponent. In the third race for seats on that court, Bert Richardson faced a Democratic opponent in addition to a Libertarian and won with 59.82%.

    COURTS OF APPEALS

    Member of the courts of appeals are elected from their respective appellate districts. This means that they are more competitive, - at least some of them, but not always.

    In San Antonio (4thCOA), Republican Sandee Bryan Marion defeated Democrat Irene Rios with 55.50% of the vote. This was the judicial equivalent of an open-seat contest following Chief Justice Catherine Stone's decision not to seek re-election.
     
    The Third Court of Appeals in Austin also featured an open contest for chief justice: Republican Justice Jeff Rose, a sitting member of the court, defeated Democrat Diane Henson, a former member of the Austin Court, with 54.14% of the vote versus Henson's 45.85%. Chief Justice J. Woodfin "Woodie" Jones had decided not to stand for re-election. The outcome will give the new governor an  opportunity to make an appointment for the position vacated by Rose upon ascension to the position of chief.
     
    In Houston, Republican Chief Justice Kem Thompson Frost successfully defended against Democrat Kyle Carter, a Harris County District Court judge first elected in 2008, with 57.59% of the vote. Incumbent Ken Wise, formerly a District Court Judge in Harris County, prevailed over his Democratic opponent Gordon Goodman with 58.24% of the vote.

    The only incumbent Democrat on the First Court of Appeals, also in Houston, lost to Republican challenger Russell Lloyd. The vote was 57.13% for Lloyd, and 42.86% for Jim Sharp, who was elected to the appellate court in 2008, when Democrats also swept Republican judges from their benches in Harris County, which went with Obama while much of Texas voted for McCain. In that election, Sharp was the only Democrat to win an appellate bench in the Houston Court of Appeals district which includes Harris County and nine additional counties, which makes the appellate district more conservative/red than Harris County alone, not to mention the City of Houston, which elects Democratic mayors.

    In Dallas Craig Stoddart, recently appointed by Governor Rick Perry to fill a vacancy, prevailed with 55.59% over Ken Molberg in the contest involving the unexpired term.

    In Corpus Christi (13thCOA), Democratic incumbent Dori Contreras Garza won reelection to Place 6 on the Thirteenth Court of Appeals -- but just barely -- with 50.96% of the vote, less than 2% over Doug Norman, her Republican opponent. The difference was less than 5,000 votes (based on unofficial results as of 11/22/2014).

    In sum, Republicans won all appellate races save one. Of only two Democratic incumbents in these races, one lost and the second one survived by the skin of her teeth.

    DATA SOURCE: Unofficial 2014 General Election Results from the Texas Secretary of State

    PARTISAN TIDES

    Judicial races are down-ballot races that are driven by straight-ticket voting and partisan tides. That does not make candidate-specific attributes, incumbents’ record and standing with the attentive public, or campaign efforts by them or on their behalf irrelevant, but it makes these factors more important when contests are close. This may not have been the case in 2014 (even without the benefit of hindsight), but 2008 was another matter. Unsurprisingly, Democratic candidates for judicial positions did better in a presidential election that turned the White House back over to a Democrat, but not everywhere. Much has to do with the electoral geography of Texas.  

    LOOKING BACK: 2008 DEMOCRATIC WINS IN APPELLATE COURT RACES, AND MARGINS OF VICTORY THEN  

    In 2008, Obama did not win Texas (55.45% of the statewide vote went to McCain), but a number of Democrats were elected or re-elected to court of appeals benches with votes shares ranging from just barely over 50% to as high as 66.48%.
      
    Democratic challenger Woodie Jones unseated incumbent Republican Chief Justice Ken Law in Austin (3rd Court of Appeals) with 52.40% of the vote.
      
    In San Antonio, Democrat Catherine Stone, originally appointed to a vacancy by Governor Ann Richards in 1994, prevailed over Republican Ann Comerio in the contest for Chief Justice of the Fourth Court of Appeals with 55.81% of the vote.  
       
    In El Paso (8th Court of Appeals), Democrat Guadalupe “Lupe” Rivera put Republican Kenneth R. “Kenn” Carr in the shade with a 66.48% landslide.
       
    In Corpus Christi, Dori Contreras Garza beat Republican Caroline Bertuzzi with 58.58% of the vote.
      
    In Houston, Democrat Jim Sharp beat Republican Ed Hubbard in the contest for a position on the First Court of Appeals with a narrow margin (50.57%). Hubbard had defeated the incumbent in the Republican primary. Republican incumbent Laura Carter Higley, who was also up for reelection, was able to hold on to her bench with 51.23% of the vote, warding off a challenge by Leslie C. Taylor
      
    On the sister court in the same city, the Fourteenth Court of Appeal, incumbent Chief Adele Hedges faced a challenge by Democrat Joe W. Beverly and survived -- but just barely – with 50.96% of the vote. Three other Republican incumbents on that court also held on to their positions, all with less than 52% of the vote. The margins of victory and mixed outcome (the first Democrat was elected to one of two previously all-Republican appellate courts) made Houston the most competitive appellate battleground in the 2008 general election. In Harris County, the partisan tide had a much more sweeping impact on the district courts because Harris County voted for Obama, though the surrounding counties (which are part of the appellate district that elects the members of the 1st and 14th Court of Appeals) did not.
       
    In Dallas, Republicans won all three appellate races with more than 52% of the vote. Republican Rex Davis on the 10th Court of Appeals in Waco cruised to victory with the highest margin on the Republican side: 63.92% of the vote. 
       
    Electoral geography matters. Judicial races are no different.

    2014 TEXAS JUDICIAL ELECTION LINKS:

    Texas Appellate Law Blog (blogpost summarizing results of 2014 appellate races)
    Texas Judge Race (2014 pre-election/campaign information with links to campaign finance reports filed with Texas Ethics Commission)
    Houston Chronicle endorsements in local appellate races: For Courts of Appeals  (Oct 13, 2014)
    Houston Bar Association 2014 Judicial Candidate Qualification Poll: 2014 HBA Poll of judicial candidates in contested races (Table of Result)
    State Bar of Texas Judicial Poll Results (note disclaimer): 2014 SBOT Judicial Poll

    TEXAS APPELLATE SYSTEM -  2 LEVELS OF APPELLATE COURTS - TWO HIGH COURTS WITH DIVISION OF LABOR FOR CIVIL AND CRIMINAL CASES 

    Structure of Appellate Court System in Texas

    THIRTEEN COURT OF APPEALS DISTRICTS: FIRST AND FOURTEENTH OVERLAP 

    Texas appellate districts shown on map: Numbers match Courts of Appeals
    First through Fourteenth 










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