Litigation

Saunders Walsh & Beard Secures $2.5 Million Judgment in Collin County Commercial Litigation

McKinney, TX – June 19, 2025 – Saunders Walsh & Beard is pleased to announce it has obtained a $2.5 million judgment in a recent commercial litigation case in Collin County’s 199th District Court (Cause No. 199-05058-2021). Chapman Bauerlein served as lead trial counsel in this complex business dispute, achieving a strong result through strategic trial advocacy.

This significant verdict underscores the firm’s unwavering dedication to results-driven litigation and client-centered service.

Saunders Walsh & Beard welcomes conversations with professionals and law firms interested in collaborating or referring complex commercial matters.

 

Contact:
214-919-3555
info@saunderswalsh.com

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Jacob D. Thomas, partner at Saunders, Walsh & Beard, is being honored as “Best of D” 2025 for Construction & Business Litigation by D Magazine. Board Certified in Construction Law by the Texas Board of Legal Specializations, Jacob represents owners, general contractors, subcontractors, engineers, and suppliers in a broad range of disputes arising from commercial and residential construction projects.

Mr. Thomas emphasizes preparedness and draws on his knowledge and experience to formulate an approach that focuses on achieving his client’s goals as efficiently and effectively as possible. From the start of the case until its resolution, Mr. Thomas communicates with his client and offers him or her appropriate and useful guidance to enable his client to make informed decisions.

As a mediator, Jacob resolves conflicts involving commercial construction, residential construction, partner/shareholder litigation, and general business disputes. Jacob is one of only a handful of mediators based in Collin County focusing solely on commercial litigation.

In recognition of his ethical standards and exceptional results, Mr. Thomas has an Avvo “Superb” rating and an AV rating from Martindale, Texas Super Lawyers Rising Star (2015-2018), and Texas Super Lawyer (2020-present).

If you are facing challenges in construction or business litigation, don’t navigate these complexities alone. Contact Jacob D. Thomas today and discover how his expertise can help you achieve your goals efficiently and effectively. Visit Saunders, Walsh & Beard or call us at 214-919-3555 to get started.

It’s fall in an odd-numbered year and that means only one thing in Texas–lawyers have a whole host of new and updated rules to learn after the recent legislative session.

One of the most substantive changes occurred in Chapter 18.001 of the Civil Practice and Remedies Code. In the good old days (three months ago) a plaintiff could file an affidavit from a medical provider stating the amount charged for the services was reasonable and the medical services provided were necessary. If this affidavit was timely filed 30 days prior to trial (or 30 days prior to the date evidence was heard at trial), then the affidavit alone would be sufficient evidence to support a finding of fact that the amounts charged were reasonable and necessary. Once filed, the burden was then on the defendant to show the charges were not reasonable and necessary by filing a controverting affidavit within 30 days of being served with the plaintiff’s affidavit. If the defendant did not file their own controverting affidavit within 30 days, then the defendant would not be able to contest the necessity and reasonableness of the charges at trial.

HB 1693 changes all of that.

The deadlines surrounding the new rule are the most important change. Now, plaintiffs must serve their 18.001 affidavit on a defendant within 90 days of the defendant filing an answer. This is vastly different than the previous 30 day before trial (first hearing of evidence) deadline and will result in fewer defendants being rushed to file a controverting affidavit on the eve of trial.

If a court orders, or a portion of the Texas Rules of Civil Procedure set, the plaintiff’s expert designation earlier than 90 days after the defendant files its original answer, then plaintiff must serve its 18.001 affidavit by the earlier expert designation deadline. Simply put, if a court orders a plaintiff’s expert designation on a date 60 days after the defendant’s answer, then the plaintiff must file its 18.001 affidavit by its expert designation deadline, rather than the 90 days.

A defendant now has 120 days after the date they file their answer to serve their controverting affidavit. Similar to the rules for plaintiffs, defendants will have to serve their controverting affidavit earlier if a court orders the defendant’s expert designation for a time earlier than 120 days after defendant’s answer.

Practically speaking, this change will result in defendants receiving more complete sets of medical records at an earlier stage of litigation and it’s likely that service of 18.001 affidavits will now be included in agreed scheduling orders, removing doubt and adding efficiency to the litigation process.

If a party to a lawsuit wants to appeal the trial court’s judgment, it has to post security in the form of a supersedeas bond to suspend enforcement of the judgment during the appeal.  In Top Cat Ready Mix, LLC v. Alliance Trucking, LP, et al., the Texas Fifth District Court of Appeals recently addressed the proper calculation of the amount of the supersedeas bond.

Instructions for calculating the amount of the supersedeas bond are set forth in Chapter 52 of the Texas Civil Practice & Remedies Code.  Pursuant to the statute, “the amount of the security must equal the sum of:  1) the amount of compensatory damages awarded in the judgment; 2) interest for the estimated duration of the appeal; and 3) costs awarded in the judgment.”  Tex. Civ. Prac. & Rem. Code §52.006(a).  Unfortunately, the phrase “compensatory damages” is undefined.  In Top Cat Ready Mix, the court was tasked with interpreting the phrase “compensatory damages.”

The issue addressed in Top Cat Ready Mix is whether an award of contractual pre-judgment interest should be included as “compensatory damages” for purposes of calculating the amount of a supersedeas bond under Chapter 52.  The trial court’s judgment awarded the plaintiff $315,087.21 in “actual damages,” $198,739.63 in “contractual pre-judgment interest,” $70,000 in attorneys’ fees, and post-judgment interest.  The defendant superseded the judgment pending its appeal by posting a cash deposit in the amount of $371,802.90, reflecting the “actual damages” award, but not taking into account the “contractual pre-judgment interest.”  The plaintiff filed a Motion to Review Supersedeas Security with the appellate court seeking to increase the amount of the bond to include the “contractual pre-judgment interest.”

In its opinion dated December 27, 2018, the Texas Fifth District Court of Appeals concluded that the phrase “compensatory damages” includes contractual pre-judgment interest.  The court turned to the Black’s Law Dictionary, the Texas Finance Code, and the Texas Supreme Court’s opinion in In re Nalle Plastics Family Limited Partnership, 406 S.W.3d 168 (Tex. 2013) to reach its conclusion.  While pre-judgment interest is “compensatory,” it is not considered an element of damage.  However, in its opinion, the court drew a distinction between pre-judgment interest and contractual interest.  “’Contract interest’ means interest that an obligor has promised or agreed to pay to a creditor under a written contract of the parties.  The term does not include judgment interest.”  Tex. Fin. Code §301.002(a)(1).  The court held, “While pre-judgment interest might not be compensatory damages, ‘contractual interest’ is ‘a part of the debt, as much so as the principal.’”  (citing First Nat’l Bank v. J.I. Campbell Co., 114 S.W. 887, 890 (Tex. Civ. App. – San Antonio 1908, no writ).  Therefore, “contractual interest” is a “compensatory damage” for the purpose of calculating the amount of a supersedeas bond, while statutory “pre-judgment interest” is not.

The court’s opinion in Top Cat Ready Mix, LLC v. Alliance Trucking, LP, et al. provides guidance in both the drafting of judgments and the posting of security for an appeal.  When the amount of “pre-judgment interest” to be awarded is based upon the parties’ contract, it should be noted in the judgment as “contractual interest” and not as “pre-judgment interest.”  If the award recites the nature of the interest clearly, there should be less argument over the proper security needed to suspend enforcement of a judgment during appeal.

Contact Saunders, Walsh & Beard at 214-919-3555 for help with complex litigation matters by one of our AV-Rated attorneys in McKinney, TX.

On August 3, 2017, the 2^nd District Court of Appeals in Fort Worth granted class certification against Lon Smith Roofing (LSRC), a prominent North Texas Roofer, for violation of the Texas Public Insurance Adjusting Act. Given the direction the courts in North Texas have gone in the past few years, the ruling is not a surprise. It is a warning to restoration contractors in general, and roofers in particular, that the old way of doing business is over. Contractors that negotiate with, or even represent themselves as able and willing to negotiate with, insurance adjusters do so at their own peril. (read more)

By way of background, in September 2013, the Keys sued LSRC asking the court to declare their contract void and to order the return – to them – of all monies their insurance company paid to the roofer. It’s important to remember that this is not a lawsuit about whether the roof was properly or timely installed. The roof doesn’t leak, the color isn’t wrong, the roofer didn’t damage the driveway or flower beds, or fail to respond to warranty claims. This lawsuit, which is a continuation of a dispute that started in 2011, is about language that, until recently, was commonly found in roofing contracts throughout the state of Texas.  Language that I still routinely see in roofing contracts today.

The Keys asked the 236^th District Court in Tarrant County to approve them to act as representative plaintiffs in a class action lawsuit against LSRC. On October 15, 2015, the district court judge signed an order granting the class certification. That order was immediately appealed. Last week, after almost two years, the appellate court issued its ruling upholding the class certification on the Keys’ claim for the “return” of all monies paid to the roofer as part of their declaratory judgment claim (violation of Public Insurance Adjuster’s Statute/Insurance Code 4102) and the DTPA claim that provides for the potential for treble damages for violation of Texas Insurance Code 541 (unfair methods of competition and unfair or deceptive acts or practices). Class certification was denied for the DTPA claim for unconscionability.

The appellate court’s decision can, and likely will, be appealed to the Texas Supreme Court, who can choose to review that ruling, or to leave it undisturbed. In the meanwhile, the ruling upholding class certification is a further step in the continuum of cases favoring consumers to the detriment of restoration contractors. In discussing the facts supporting its decision to uphold the class certification, the court cited to testimony from Mr. Keys that the roofer “never told him that he could or should get a public insurance adjuster involved in his roof-damage claim under his homeowners’ policy” and that the homeowner “understood that [Roofer] was contracting to discuss his insurance claim with his insurer and was also contracting to repair his roof.“

Some groups are claiming this as a victory for consumers. Whatever your perspective on this issue, what is clear is that lawsuits claiming violations of the Public Insurance Adjuster (PIA) law have just been given a big boost via class certification.

What does mean for those of you working in the restoration contracting community? First, what happened to this roofer could have happened to any number of other roofers using the same or similar language in their contracts. Or any roofer negotiating claims with insurance adjusters. The ability to initiate class action lawsuits will embolden plaintiff’s attorneys to pursue similar claims against restoration contractors and roofers since they’ll only have to prove the representative plaintiff’s claim rather than the claims of every plaintiff taking part in the class action suit (one plaintiff – multiple verdicts). The cost to defend against a lawsuit of this type, win or lose, is extremely expensive. Further, if you lose, you not only have to write a check to the property owner for anything paid to you by them or their insurance company, sometimes tripled depending on whether the violation is determined to be knowing or intentional, you’ll also have to pay their legal fees, which will almost certainly greatly exceed the cost of the roof, to potentially every owner you sold for the last ten years (the span of the Keys/LSRC class action certification).

What should you do? Make sure your contract doesn’t contain any of the language the courts have determined violates the PIA statute. Include language in your contracts that specifically puts the owner on notice that you are not offering to and will not provide any PIA services. Don’t hold yourself out as an insurance expert. Understand and be ready to educate owners about their rights and options for dealing with insurance adjusters (attorney, appraisal, public insurance adjuster), making referrals where appropriate to ethical attorneys, appraisers, and public insurance adjusters who can advocate for the homeowner without taking away your sale. Restrict your conversations with insurance adjusters to answering questions regarding your scope and price – don’t negotiate the claim with the insurance adjuster.

Karen, you say, you don’t know what it’s like out in the real world. But I do understand, including that the majority of “negotiations” are initiated by the insurance adjuster. However, this PIA law isn’t going away. Instead, it is being vigorously and strictly enforced in the courts and by TDI, and the ramifications to your business cannot be ignored.

Congratulations to our firm’s clients, Phil and Susan Swartztrauber, for winning a court order obtaining insurance coverage against Travelers Casualty and Surety Company of America.

The case was handled by Alex Beard.  The Swartztraubers were board members of their Home Owners Association (HOA), and were sued for alleged defamation in an underlying suit filed by the HOA’s President.  Travelers insured the HOA, but refused to provide the Swartztraubers with a defense to the defamation suit.

U.S. District Judge David Hittner disagreed, and ruled that Travelers breached its policy contract, and violated the Texas Prompt Payment Statute, by failing to provide the Swartztraubers with a defense.  So, Travelers will have to pay for the defense, legal fees and costs of the coverage case, as well as the underlying lawsuit.

Great work, Alex!

 

Although a Motion for Nonsuit or a Notice of Nonsuit is effective immediately upon filing, there must still be an order formally dismissing the case.  Texas Rule of Civil Procedure 162 reads as follows:

At any time before the plaintiff has introduced all of his evidence other than rebuttal evidence, the plaintiff may dismiss a case, or take a non-suit, which shall be entered in the minutes. Notice of the dismissal or non-suit shall be served in accordance with Rule 21 a on any party who has answered or has been served with process without necessity of court order. Any dismissal pursuant to this rule shall not prejudice the right of an adverse party to be heard on a pending claim for affirmative relief or excuse the payment of all costs taxed by the clerk.  A dismissal under this rule shall have no effect on any motion for sanctions, attorney’s fees or other costs, pending at the time of dismissal, as determined by the court. Any dismissal pursuant to this rule which terminates the case shall authorize the clerk to tax court costs against dismissing party unless otherwise ordered by the court.

The phrase “without necessity of court order” does not mean that an order formally dismissing the case is not necessary.  The Supreme Court of Texas sets forth a particularly good reason why an order is necessary:

The nonsuit extinguishes a case or controversy from the moment the motion is filed or an oral motion is made in open court; the only requirement is the mere filing of the motion with the clerk of the court.[1]

However, the signing of an order dismissing a case, not the filing of a notice of nonsuit, is the starting point for determining when a trial court’s plenary power expires. Appellate timetables do not run from the date a nonsuit is filed, but rather from the date the trial court signs an order of dismissal.[2]

An order is necessary in order to establish appellate deadlines.  In addition, a deadline needs to be established for the court’s plenary powers in light of the balance of Rule 162, which specifically allows the trial court to assess sanctions, attorneys’ fees, and costs after the nonsuit is taken.

The necessity of an order is further reinforced when taking into consideration bogus counterclaims for declaratory relief.  In some cases, a defendant may have good reason to dispute a nonsuit, especially if res judicata may prevent future lawsuits.  In such instances, although a nonsuit has been filed, the trial court will need to determine whether a counterclaim exists that prevents the dismissal of the case as a whole.[3]

If you have anything to add to the topic, please leave a comment in the section below.

[1] Univ. of Tex. Med. Branch at Galveston v. Estate of Blackmon, 195 S.W.3d 98, 100 (Tex. 2006).

[2] In re Bennett, 960 S.W.2d 35, 38 (Tex. 1997).

[3] See BHP Petroleum Co. v. Millard, 800 S.W.2d 838 (Tex. 1990).

There is nothing like Fall football, especially in Texas.  As a native Texan, one of my favorite sayings is “everything is bigger and better in Texas.” The Allen football stadium is no exception.

Last year, deficiencies were discovered that resulted in the closure of Allen’s $60 million Eagle Stadium.  Since that time, Mark Walsh, a founding partner of Saunders Walsh & Beard, has been working with AISD, Pogue Construction, and PBK Architects to diagnose, engineer, and create a long term solution to the issues. Implementing that solution, and getting it paid for by the original designers and builders (without litigation) required an aggressive and complex legal strategy, coupled with the cooperation of all parties.

Congratulations to Allen Independent School District, Superintendent Dr. Lance Hindt, and Mark Walsh for developing and executing the legal strategy that got the stadium repaired, losses covered, all expenses paid, and the team back in their Stadium!

For details of the settlement reached, check out the articles below:

http://starlocalmedia.com/allenamerican/news/allen-isd-reaches-m-settlement-for-stadium-repairs/article_e4f5d636-a36f-11e5-ab36-63701a5b5de2.html

http://allenblog.dallasnews.com/2015/12/allen-isd-to-receive-1-7-million-settlement-related-to-stadium-problems.html/

While few lawyers are filing lawsuits the week before Thanksgiving, the holiday does give rise to some interesting cases.  I have compiled a small list of interesting legal entanglements that reference Thanksgiving in one shape or form.  Whether you will laugh or cringe, I am not quite sure, but here they are:

• Jacobs v. Kent – That unidentifiable form in the bushes making gobbling noises may not be a turkey. Hold your fire!  A couple of guys were hunting for turkeys in New York.  “Defendant’s hunting party had established its position in the woods, and plaintiff’s hunting party entered that area of the woods while looking for an area in which to hunt.  According to defendant, he fired into the dense underbrush after hearing a gobbling sound and seeing a flash of red, and he thereupon discovered that he had shot plaintiff.”  Anyone interested in roasted Jacobs for Thanksgiving dinner?
• Texas & N.O.R. Co. v. Nolen – If you raise turkeys to be sold around Thanksgiving, you don’t get to recover the turkeys’ Thanksgiving value when they are struck by a train in August.  If your turkeys are killed in August, they get cold-cut value.
• Silva v. F.W. Woolworth Company – If you choose to eat a Thanksgiving dinner of turkey with dressing and vegetables, you are assuming the risk of choking on a turkey bone. “Bones which are natural to the type of meat served cannot legitimately be called a foreign substance, and a consumer who eats meat dishes ought to anticipate and be on his guard against the presence of such bones.”  Now, what if the turkey dinner had a fish bone lodged in it?  Would that require a different analysis?
• Greenberg Smoked Turkeys, Inc. v. Goode-Cook, Inc. – The plaintiff, a seller of turkeys, posted serving instructions on its website. The defendant, a competitor, copied the instructions and posted them on its own website.  The plaintiff sued for copyright infringement.
• Knight v. Merhige – Fair warning, this one is a little creepy. “These appeals arise from a tragic event—Michael and Carole Merhige’s 35-year-old son, Paul, shot and killed family members at a Thanksgiving gathering in Jupiter, Florida. Following the shooting, representatives of the victims’ estates sued the Merhiges, collectively alleging negligence.”  Apparently, Paul had a history of irrational violence and was not generally welcome at large family gatherings.  This history included being involuntarily committed on three occasions and a failed suicide attempt (he survived shooting himself in the chest).  Paul’s parents, knowing that he had quit taking his meds, thought a visit with family for Thanksgiving would raise his spirits.  Despite these hopes, there were some concerns:

In the moments before the Thanksgiving dinner, appellee Carole Merhige expressed concern regarding Paul’s attendance. In one instance, she told an unnamed witness that she hoped Paul “would not kill everyone” at the dinner party. Likewise, she told her daughter, Lisa, “I hope he [Paul] doesn’t come and kill us all tonight”; Lisa responded by telling her mother not to tell her father because he “would get upset that [they] had such ideas.”

The resulting massacre isn’t something that I want to describe.  Ultimately, the lawsuit was dismissed upon the finding that the Merhiges had no legal duty to control the actions of their emancipated son.  The appellate court upheld the dismissal.  You thought your family was crazy.

• Georgia v. Bartels and Marsh – You may have heard about this one from a couple of years ago. This fine, upstanding Georgia family decided to give their seven (yes, 7) children tattoos for Thanksgiving.  Only six of the seven received tattoos; apparently the parents decided the 10-year-old would have to wait until next Thanksgiving, when he was older.  These misguided parents were charged with cruelty to children, reckless conduct and… wait for it… tattooing without a license.
• Florida v. Smith – Junior Smith stuffed the turkey the wrong way.  His daughter-in-law was pretty upset about it.  Junior used some choice words to describe his daughter-in-law, and his son was bound to defend her honor.  It was during the ensuing fight, which poured into the children’s room, that the mother-in-law decided to rearrange the daughter-in-law’s hair and face.  The grandparents spent the rest of Thanksgiving in jail.
• In re Jean Kasper – Family accidentally had their grandmother for dinner. Apparently the recently deceased’s ashes got into the Thanksgiving mashed potatoes.  “I don’t think that is pepper!”

As with most of my blogs, I obtained my information from a variety of sources, but I found THIS ONE particularly helpful.  I trust that this post was entertaining and that it has no adverse effects on your Thanksgiving.  If you know of any additional Thanksgiving related lawsuits, please add them in the comments below.  Maybe I will use them next year.

A couple of years ago, a client came to me for assistance.  He suspected that his financial advisor was not being honest with him.  After looking through his documents, I had a lot of questions that needed to be answered, but I did not have enough to justify a lawsuit.  We made every effort to gain the opposing party’s cooperation, but to no avail.  I discussed my concerns with the client and proposed that we seek a Rule 202 deposition.

Texas Rule of Civil Procedure 202 is a pre-suit investigative tool often overlooked by many litigators.  Rule 202 allows a potential plaintiff to take an oral deposition or deposition on written questions prior to suit in order to 1) perpetuate or obtain the person’s own testimony or that of any other person for use in an anticipated suit; or 2) to investigate a potential claim or suit.  This tool is not to be used routinely[1], nor would many people wish to incur the expense associated with obtaining a pre-suit deposition, but there are certainly situations where it should be considered.

After deciding that the Rule 202 deposition could be helpful, I discussed with the client the procedure and costs involved.  The client approved the strategy and we proceeded.  In this case, the procedure went very smoothly.  We were able to effectuate service pursuant to the Rule, we were able to obtain the court’s order approving the application, and the deposition took place without any procedural difficulties.  While we were able to determine that the client’s suspicions were correct, we also determined that we were drilling a dry hole; the defendant was essentially judgment proof.  The client was able to gain a margin of satisfaction from learning the truth, and he was able to avoid the costs associated with litigating a case that would likely have resulted in little more than a paper judgment.

Despite the benefits of the Rule 202 deposition in my case, I have yet to have another case that I felt warranted its use.  In addition to the financial considerations, there are a number of statutory and common law limitations on the procedure.  Rule 202 cannot be used to investigate a health-care claim.[2]  In addition, Rule 202 cannot be used to circumvent procedural requirements, such as in certain Labor Code claims that must be exhausted before suit can be filed in state courts.[3]  Based upon the foregoing, I believe that Rule 202 investigative depositions would not be available to a litigant when one of the potential defendants is a licensed or registered professional under Chapter 150 of the Texas Civil Practice & Remedies Code.  Furthermore, the courts will not allow a Rule 202 deposition that is intended to discover trade secrets.[4]  For these reasons, even if I were inclined to use this tool more often, its usefulness is limited.

When researching Rule 202 for my prior case and for preparing this blog post, I was surprised to find quite a bit of case law interpreting the rule.  Apparently, this pre-suit investigative tool is used more often than I originally suspected.  If you have any experience with this procedure, or any thoughts on what I have written, please share in the comment section below.

[1] In re Bailey-Newell, 439 S.W.3d 428, 431-32 (Tex.App. – Houston [1^st Dist.] 2014, no pet.).

[2] In re Jorden, 249 S.W.3d 416, 418 (Tex. 2008); see Tex. Civ. Prac. & Rem. Code §74.351(s).

[3] In re Bailey-Newell, 439 S.W.3d at 431-32.

[4] In re Cauley, 437 S.W.3d 650 (Tex.App. – Tyler 2014, no pet.).

E-filing and the adoption of new local rules has changed how you go about obtaining a temporary restraining order (“TRO”) in the Collin County District Courts.  I will not tell you how to comply with the applicable rules and statutes clearly set forth in the Texas Rules of Civil Procedure[1] and the Texas Civil Practice & Remedies Code.[2]  This is a practical overview on how to obtain a TRO in Collin County without upsetting a judge or the court’s staff.

After preparing all of the necessary documents, contact the Collin County District Clerk to let the clerk know that you will be e-filing an Application for Temporary Restraining Order.  In all likelihood, you will be told to include in your e-filing a reference to your need for an emergency hearing.  Anything you can do to give the clerk’s office forewarning will be greatly appreciated by the clerks and will make your day a lot less stressful.

Once you have e-filed the necessary documents, proceed to the Collin County District Clerk’s office.  The Collin County District Clerk’s Office is probably one of the most efficient offices in the state.  You may actually receive confirmation of the filing and be assigned a court before you get to the courthouse, but do not proceed directly to the courtroom.  You must first go to the District Clerk’s Office and request that the filings be transferred to the assigned court.  Do not expect the court to have something that you e-filed less than an hour ago.  The District Clerk’s Office will be able to ensure that the file is with the court before you start asking for an audience.

Pursuant to Local Rule 2.4(c), an Application for Temporary Restraining Order must first be presented to the judge of the court to which the case is assigned.  In other words, you cannot roam the halls looking for a friendly judge.  If the court you have been assigned is unavailable, it is best to approach the bailiff or court coordinator and ask for permission to approach the auxiliary court.

Be aware of Local Rule 2.4(a) and (b).  Local Rule 2.4(a) requires that the applicant for a TRO notify the opposing party at least two hours before the TRO hearing.  In practice, this is a bit more difficult to do than it would seem.  I strongly suggest filing for a TRO early in the day if possible.  This will give you time to jump through these hoops.  It is hard enough trying to get a court coordinator to squeeze you into a docket, but it adds a level of difficulty when you ask for a special setting to be placed on the docket no sooner than two hours in the future.  Once you obtain your special setting, first contact your client and ensure that someone is available to testify if necessary.  Second, contact the opposing party.  You must notify the opposing party of the nature of the hearing, their right to appear, the time of the hearing, the address of the courthouse, and the courtroom number.  Make a checklist prior to initiating the call.  Once the call is completed, prepare a Certificate of Notice that restates your conversation with the opposing party.  Be prepared to present the Certificate of Notice at the TRO hearing.

Under certain circumstances you can forego the two hour notice.  Pursuant to Local Rule 2.4(b), you can avoid giving notice if you file a certificate with your Application that states one of the following:

1. That irreparable harm is likely imminent and there is insufficient time to notify the opposing party or counsel; or
2. That to notify the opposing party or counsel would impair or annul the Court’s power to grant relief because the subject matter of the application could be compromised or property removed, secreted or destroyed, if notice were given.

            Frankly, I would rather attempt to give the opposing side two hours’ notice than verify one of the above statements.

            Once you have jumped through the hoops and obtained the court’s order granting the application and ordering the issuance of the writ, return to the Clerk’s Office, tender the cash or surety bond (that’s a whole new can of worms) and request the issuance of the TRO.  Sadly, after all of the rush, you will often be forced to wait two to four hours for the issuance of the TRO.  Once issued, you must read over the TRO very carefully.  While the Collin County District Clerk’s Office is one of the best in the state, mistakes are sometimes made.  It is best to read through the TRO and make sure it complies with the court’s order.

            I am knocking on wood when I write that I have not had any serious problems with obtaining a TRO in Collin County.  If you have any good stories to share or can add to my advice, please share in the comment section below.

[1] Tex. R. Civ. P. 680 – 693a

[2] Tex. Civ. Prac. & Rem. Code 65.001 et seq.

It’s the bottom of the 9^th, two outs, and a runner on 2^nd.  The home team is down by one.    The batter steps up, swings and misses.  Count is full.   The pitcher eyes the batter, and he lets it rip… A hit, deep in the hole. The shortstop snags the ball, and throws to 3^rd.   It’s a high tag. Ouch, that had to hurt!  He’s Safe!  No he’s out!  No… well.  The third base coach is yelling; he’s a big guy, towering over the ump – It’s getting intense.  This coach is used to getting his way.    “A little over the top there, coach!”  What a spectacle. Nope, he’s still out.  The coach is irate.  A fan jumps in on the action and gives it to the ump! 

Well, that was interesting, even entertaining…if it was a Major League game.

However, when it’s 7 year old kids’ baseball at your local little league park, with teenage umps and volunteer coaches, its more embarrassing than entertaining.   So, a complaint is filed against the over-the-top coach for his bad example in front of the kids and the teenage umps. Now, the league’s volunteers “get” to deal with the situation. What a joy for them.

 I’ve been on the Boards of youth baseball and softball leagues.   A board member is a “volunteer” position. “Volunteers” (which these days seem to be headed toward the endangered species list) usually agree to these positions of responsibility for the sole purpose of helping out the community.   Dealing with complaints like this one can be one the worst part of a volunteer’s duties (well that, and scoring 6 double elimination tournament games in 100 degree temperature).

 But this is the reality of youth sports in 2015 – the best equipment; private instruction; and skills drilled 24/7. A place where adults sometimes forget what sports are about – that it’s just a game and the game has far more to teach our youth than physical skills.  Acting like Billy Martin in front of two 7 year old boys’ baseball teams is not a good lesson in sportsmanship.   Why would any adult teach children that it’s appropriate to lose control, yell, scream and intimidate?  Unfortunately, this scenario is played out across our great nation thousands of times a year.

 It’s a good thing unpleasant situations like this stay on the field and don’t get raised to the level of lawsuits. Or do they?  In  a recent case I handled, an assistant coach, who was very “successful” and had access to seemingly unlimited resources, decided to sue not only the President of the local league, but also his own head coach who  transmitted a complaint about his behavior.  He claimed they “ruined” his reputation in the community by complaining about his on field behavior.   He demanded justice, in the form of $$.   Within days of the incident he had hired his attorney and began to demand “pre-suit depositions” to “investigate”.

 This is when the case came to my attention.    “How silly,” I thought and I told the other side so.  This type of incident should NOT be handled by the courts.  Please don’t misuse the judicial system. The facts are shameful enough. Do you really want to drag 7 year old kids in as witnesses?

 My requests were ignored, and suit was filed.   This coach would NOT let it go.  We immediately contested the case in the trial court using a little known statute that protects free speech in Texas. In summary “Judge, it’s a 7 year old kids’ baseball game.  People have a right, and a duty to report to the league behavior that they feel is inappropriate.   It is about the kids. This case is just wrong and should be thrown out!”   The Judge, off the record, pulled us aside and advised something to the effect that the coach might want to reconsider his lawsuit.  Consultation was had.  The Courtroom “murmurs” ensued.    No, the coach wanted to proceed.   The Judge denied our initial motion to dismiss the case.   It was a relatively new motion in Texas, and there was not much precedent on this new procedure.

 Swift justice was denied.   Normally, to appeal a case, you have to wait for a “Final Judgment” and this was just preliminary.  A final judgment could take years.  Would we really have to go through depositions and other discovery to get a case like this thrown out?  We would need to find a way to appeal.  I knew it was time to look to a true legal “appellate artisan”.  Someone who knows the Texas appellate system like the back of his hand. Enter my partner Alex Beard, who’s handled over 100 appeals. He would know where to take this and what to do with it to find some justice.

 Now, justice moves slowly, but I have found that it does move.   Just last week, over a year and a half later, the Ft. Worth Court of Appeals ordered not only that the case be dismissed, but that it be sent back to the  trial court to determine the appropriate amount of attorney’s fees and sanctions to be paid by the Plaintiff.   This is a rare finding indeed.   For now, justice has been served – served like a full-count, bases loaded home run over left field.

 Despite the seemingly silly facts of this case, the application of the Court’s opinion could actually be far reaching.   For those details, and the legal reasoning behind the dismissal, I defer to Mr. Beard who will explain in his next entry how he slowed the 95 mph curve ball into a  harmless meat ball, with little spin, so the Court of Appeals could knock it out of the park.

  If you have an interest in the very detailed opinion, it can be found here:

http://www.search.txcourts.gov/SearchMedia.aspx?MediaVersionID=8df42abb-f679-4131-9d89-09dc6d15a876&coa=coa02&DT=Opinion&MediaID=761f7792-bf3c-4816-bb76-f1043263ef22

I have prepared a number of voir dires, opening statements and closing arguments.  During my preparations, I always have a moment when I stop and say to myself, “What are the rules?  What might I say in passing that would create reversible error?”  I outline my voir dire, opening statement, and closing argument, I rarely write down a complete sentence.  Half the time, I do not know the specifics of what I am going to say until it comes pouring out of my mouth.  As a result of my presentation style, I leave myself open to making a mistake if I do not, as part of my preparation, go back and refresh my memory as to the dos and don’ts of talking to the jury.  The following is an outline of my dos and mostly don’ts for speaking to a jury.  Please feel free to add to the list in the comments below.

DO:

• ask any question that is reasonably calculated to identify a bias, prejudice, or any other statutory disqualification from jury service.
• argue on your analysis of the evidence, and other permissible considerations, for any position or conclusion with respect to the matters stated.[1]
• use hypothetical facts to discover bias.
• ask a juror to commit to a position that is required by law.

DON’T:

• ask a question the answer to which may show that the prospective juror has been convicted of an offense which disqualifies him, or that he stands charged by some legal accusation with theft or any felony.[2]
  • I am fairly sure I have never done this because I simply do not know what it means. Best not embarrass a juror by asking about their personal criminal background.
• state or allude to any matter that you do not reasonably believe is relevant to the proceeding or that will not be supported by admissible evidence.[3]
• assert personal knowledge of facts in issue except when testifying as a witness.[4]
• state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused.[5]
• ask any question intended to degrade a witness or other person except where you reasonably believes that the question will lead to relevant and admissible evidence.[6]
• engage in conduct intended to disrupt the proceedings.[7]
• attempt to bind or commit a prospective juror to a verdict based on a hypothetical set of facts.
• isolate one specific fact of the case and ask whether the panelist could be fair, regardless of the other evidence, based on that specific fact.[8]
• ask the panelist if one party is starting out ahead after the panelist heard a summary of the facts of the case.[9]
• if you are representing the plaintiff, tell the panel that the defendant has insurance or the plaintiff has no insurance; if you are representing the defendant, tell the panel that the plaintiff has insurance.[10]
• ask a question for which the prejudicial effect outweighs the probative value.[11]
• advise the panel of the effect of their answers.[12]
• discuss evidence that will be inadmissible at trial.[13]

I must admit, my list is a combination of my notes from Practice Court, 2003, combined with O’Connor’s Texas Rules – Civil Trials.[14]  However, not much has changed since I originally put these two sources together.  Please share any additional Dos and Don’ts you might have in the comments below.

[1] Tex. Rules of Prof’l Conduct 1 3.04(c)(3).

[2] Tex. R. Civ. P. 230.

[3] Tex. Rules of Prof’l Conduct 3.04(c)(2).

[4] Id.

[5] Tex. Rules of Prof’l Conduct 3.04(c)(3).

[6] Tex. Rules of Prof’l Conduct 3.04(c)(4).

[7] Tex. Rules of Prof’l Conduct 3.04(c)(5).

[8] Hyundai Motor Co. v. Vasquez, 189 S.W.3d 743, 756-57 (Tex. 2006).

[9] Cortez v. HCCI-San Antonio, Inc., 159 S.W.3d 87, 94 (Tex. 2005).

[10] Ford v. Carpenter, 216 S.W.2d 558, 559 (Tex. 1949).

[11] Gulf States Utils. Co. v. Reed, 659 S.W.2d 849, 855-56 (Tex.App. – Houston [14^th Dist.] 1983, writ ref’d n.r.e.).

[12] Texas Empls. Ins. v. Loesch, 538 S.W.2d 435, 442 (Tex.App. – Waco 1976, writ ref’d n.r.e.).

[13] See, e.g., Travelers Ins. v. DeLeon, 456 S.W.2d 544, 545 (Tex.App. – Amarillo 1970, writ ref’d n.r.e.).

[14] O’Connor’s Texas Rules * Civil Trials (2015), pg. 733

Picture the Thunderdome.  A shadow filed, iron caged, dome with a dirt floor the color of rust from recently spilled blood.  The moving shadows are created by the post-apocalyptic spectators hanging along the outside of the cage, clad in various leather costumes with open sores oozing puss.  You are Mad Max, you have a whistle, and your opponent is Master Blaster, a physically intimidating champion controlled by a small genius.  “Two men enter, one man leaves!  Two men enter, one man leaves.”

How does this apply to written discovery?  It’s a fun illustration as to how I view discovery.  That little whistle is my written discovery requests, the diminutive Master is opposing counsel, and Blaster is the opposing party.  As with Mad Max’s little whistle, well prepared written discovery can bring an opposing party to its knees, regardless of how good opposing counsel may be.

Written discovery serves a number of purposes, some more obvious than others, and is the primary means of steering a case.  Written discovery can accomplish the following goals:  1) Obtain previously unknown information; 2) Obtain previously unknown documents; 3) Obtain known information in admissible form; 4) Obtain known documents in admissible form; 5) Force opposing counsel (Master) to learn more about the case; 6) Force opposing party (Blaster) to do some work; 7) Get a better understanding of who I am dealing with (both Master and Blaster); 8) Get my case before the judge; and 9) Prepare for depositions (where the real work is done).  There are few other legal means for accomplishing so much.  As such, I draft my discovery requests with each of these goals in mind.

The primary goals of discovery are 1-4, obtaining information and documents in admissible form.  In law school, I was taught that these “primary goals” were the only goals to be accomplished in written discovery.  I was taught that all I had to do was serve well written discovery requests and, 30 days later, all would be revealed.  That’s funny.  I struggle to think of the last time that I learned something new and interesting as a result of written discovery.  Generally, I am happy to obtain documents in discovery and avoid having to authenticate what is already in my possession.  I will use these documents during depositions.

Written discovery is the best way to get on opposing counsel’s radar.  I want opposing counsel to be thinking about this case more than his/her other cases.  Whether it be plaintiff’s or defendant’s counsel, I want them to know that I am working the case, know more about it than they do, and will be pushing the case toward a resolution.  I like to give opposing counsel the impression that our case together is the only case I have to work.  Although results vary, I get the impression that most opposing counsel endeavor to learn more about their case as a result of my well-prepared written discovery.  If opposing counsel knows more, then we can have a realistic discussion about the value of a claim.  My written discovery makes opposing counsel work the case and helps to advance the ball.

Layman hate written discovery.  Be it a first-time plaintiff or a seasoned litigant, they will marvel at my legalese, will balk at my interrogatories, and will throw their hands up in frustration trying to produce documents in response to my requests for production.  I do not ask for information or documents solely to create work.  I seek very specific, very relevant information.  Those attorneys who cast a wide net in written discovery are being lazy and do not get the point.  Remember, I rarely find something new through discovery.  My requests are so specific as to be beyond a reasonable objection, and they require the opposing party to do some work.  By making the opposing party work, I force them to learn whether or not they will be capable of proving their claims or defenses, and I make them ask themselves whether they want to keep fighting this fight.

Through written discovery, I learn who I am dealing with.  I could be wrong about Master Blaster.  If my opponent does not make form objections, provides direct responses, and produces well organized documents, I will take note that my client and I are in for a real battle.  This will certainly affect strategy and odds of success.  On the other hand, if my opponent asks for five extensions, makes senseless objections, and produces hardly anything, I will get exponentially more aggressive, e.g., Mad Max grabs the sledgehammer after blowing his whistle and starts thumping Blaster in the head.

I hesitate to add a motion to compel as a reason to serve written discovery, but it is worth mentioning.  Sometimes I know that Master Blaster is just trying to be intimidating.  I know that they cannot provide reasoned responses or produce responsive documents.  I then need to show this disability to the court.  When taken to the extreme, I have been successful in obtaining sanctions, recovering my client’s attorneys’ fees for all of written discovery.  In most instances, I have been able to get what I want and move on to depositions.

Depositions are the real reason I serve written discovery.  My written discovery provides a road map for my depositions.  I use the same outline for my depositions as I do for my written discovery.  I use what answers I have received to formulate my leading questions.  I use the opposition’s documents as my primary exhibits, and I use the witness to prove up every document that I use.  Produced documents may be self-authenticated, but they still need to get past the hearsay rule.  Preparing really good written discovery requests makes taking depositions much easier and far more effective.  I have learned something new and interesting in nearly every deposition I have taken.  My depositions would be far less successful if I did not serve good written discovery requests.

    That is pretty much the extent of my advice using the Mad Max analogy.  I would like to say that winning a case is like blowing up the Thunderdome and ending Tina Turner’s reign of terror, but that’s really a stretch.

Over the course of the past two months I have randomly come across the phrase quo warranto.  The first time was the in the Texas Rules of Civil Procedure (Part VII, sec. 7) and the second time was in the Texas Civil Practice & Remedies Code (§§66.001 et seq.).  I was further intrigued by the fact that neither of these sources give a meaningful description of the… proceeding… cause of action… whatever quo warranto happens to be.  I became curious enough to look into it.

     “Quo warranto (Medieval Latin for “by what warrant?”) is a prerogative writ requiring the person to whom it is directed to show what authority they have for exercising some right or power (or “franchise”) they claim to hold.”[1]  The Dallas Court of Appeals describes the writ as follows:

     Quo warranto is an ancient prerogative writ through which the State acts to protect itself and the good of the public generally through its chosen agents as provided by its constitution and laws, though sometimes it is brought at the instance of and for the benefit of a private individual who may have a special interest.  Texas courts have held that mandamus is not a proper remedy when quo warranto is available.  In injunction cases, also, quo warranto is held to be the exclusive remedy to challenge the authority of a public officer.  The same rule is applied when a declaratory judgment is sought.”[2]

In the case of Lewis v. Drake, Ben Lewis initiated a mandamus proceeding in order to have Jim Jackson removed as county commission of precinct number one of Dallas County.  Mr. Lewis believed that Mr. Jackson effectively vacated his office when he declared his candidacy for another public office.  The Dallas Court of Appeals dismissed the action on the basis that mandamus is not a proper remedy when quo warranto is available.

In short, quo warranto is the sole means by which the attorney general, or, in some cases, a private citizen, can point the finger at an officer of the state and say, “Hey, you can’t do that!”  I bet the attorneys for Mr. Lewis wish they had become curious about quo warranto before they filed a mandamus proceeding against Mr. Jackson.  Thanks to my curiosity, you and I can now avoid that problem in the future.

[1]“quo warranto.”  Wikipedia.org.  2014.   http://en.wikipedia.org/wiki/Quo_warranto.  (8 Dec. 2014).

[2] Lewis v. Drake, 641 S.W.2d 392, 394 (Tex. App. – Dallas 1982, no writ) [Internal citations omitted].

Written by: Jacob Thomas

Ah, the holidays.  Tis the season of giving.  But for many lawyers and their clients, giving is not on their minds.  The client has been wronged and wants justice.  But the wheels of justice often turn very slowly, especially around the holidays.  The client wants results, but there is nothing to be had.

It doesn’t always have to be that way, especially in business disputes.  There are things that can be done to advance the ball down the field.  Even some of the most seasoned attorneys sometimes forget about the “extraordinary remedies” that Texas law affords litigants, particularly in suits involving money or property.  

Here are some of the most common “extraordinary remedies” which lawyers often overlook, but which can be extremely effective during the course of litigation:

1. Writ of Attachment.  Owed money by an out-of-state resident or an individual who is about to move out of state?  Fearful that the party you have sued will transfer property out of the state to avoid payment of a debt?  Owed money for property taken from you under false pretenses?  Get the court to issue a writ of attachment. The writ is an order from the court which enables you to seize property before judgment to secure payment of a probable judgment on an otherwise unsecured debt.  You’ll have to put up a bond in an amount ordered by the court, but it’ll probably be worth the effort.
2. Writ of Sequestration. Someone have possession of your personal property but won’t give it back, and there’s a good chance the person will destroy or move the property out of the county during the suit?  Get the court to issue a writ of sequestration.  The writ is an order form the court to a constable or sheriff, requiring them to seize the subject property.  You’ll have to put up a bond in an amount ordered by the court, but again, it’ll probably be worth the effort.
3. Writ of Garnishment.  Owed a debt that is unpaid and the debtor does not have property in Texas sufficient to satisfy the debt?  Go with the writ of garnishment.  The writ of garnishment is similar in several respects to the other writs described above, and allows you to impound funds in the hands of the garnishee (like a bank).

All of the above writs are considered harsh remedies by the courts, and so care must be taken to ensure that strict compliance with all of the requirements for obtaining them.

Happy Thanks-taking!

Written By: Alex Beard

On September 23, 2014, Aaron Rogers of the Green Bay Packers gave his fans some great advice, “Five letters here just for everybody out there in Packer-land:  R-E-L-A-X.  Relax.  We’re going to be OK.”  While Aaron Rogers was talking about the Packers’ football season, I strive to apply this advice to my litigation practice on a daily basis.

It has been my experience that the amount of stress I inflict on myself rarely changes the outcome of a case.  In addition, it would seem that, more often than not, everything has a way of working itself out.  With this in mind, I would like to offer a few observations that may help relieve some of your stress, should you be the client or the attorney.

There is an exception to every rule.  It is true, the statute of frauds requires that all contracts for the sale of real property must be in writing and signed by the party to be charged.  While this is a straightforward rule, there are dozens upon dozens of published court opinions that discuss a myriad of equitable exceptions to this rule.  The same is true of the statute of limitations.  That pesky discovery rule makes any limitation defense a long shot.  The practice of law is often about creating and exploiting exceptions.  With this in mind, try not to panic when faced with seemingly insurmountable odds.  There will usually be an exception to exploit.

There will usually be more time.  When I first started practicing law, I stressed out over every single deadline on my calendar.  I recall once going into a partner’s office, covered in sweat, and explaining how the world was going to end because discovery responses were due the next day and I just got the case.  He didn’t say anything to me.  He took the file, picked up the phone and called opposing counsel. Five minutes later I was drafting a Rule 11 Agreement extending our response deadline out an additional thirty days.  I have learned that most attorneys will work together in the name of fairness.  It is not because attorneys are giving people, it is because attorneys all believe in Karma.  There is the unspoken understanding that I must give additional time to others because one day I too will need more time.

Motions are not about winning or losing, they are about advancing the ball.  This one may sound a bit odd, and I am still collecting data, but initial returns suggest that filing a motion is a great way to make things happen, but rarely is it a game changer.  Here are some quick examples to illustrate my point:  1) Motion to Compel – the parties either agree before the hearing or at the hearing.  If the judge actually has to get involved, be ready to produce everything; 2) Motion for Summary Judgment – if there is a way for the judge to grant a partial summary judgment, that is the best the movant should hope to achieve.  Granting a Motion for Summary Judgment may get a judge overturned, but denying one will not; 3) Motion for Sanctions – whether brought separately or included within another motion, the possibility of sanctions scare everyone, but they are rarely awarded.  In Texas, we elect our judges.  The judges get campaign money from attorneys.  A judge who gets a reputation for handing out sanctions is going to have a hard time raising campaign funds.  Sanctions only get awarded if there has been egregious conduct or if the attorney is from another county (I’m joking – sort of).

I hope I have given you some good reasons to relax.  If not, I am not going to worry about it.

Written By: Jacob Thomas