I’ve got a KPitch where it’s hard to scratch –

which-pitch-2KPitch intervened in a lawsuit and obtained a temporary injunction against FSD. FSD appealed the injunction and sought mandamus relief against the intervention. KPitch then nonsuited the claims that were the basis for the injunction, and the Fifth Court agreed with KPitch that this action made the appellate proceedings moot. FSD argued that the appeal should proceed because KPitch had refiled the claims in an improper effort to obtain a severance, but the Court did not see this argument as creating an exception to the general rule about the effect of a nonsuit. Frisco Square Developers LLC v. KPitch Enterprises, LLC, No. 05-16-00992-CV (June 22, 2017) (mem. op.)

Should I pay or should I appeal now?

the clashAn attorney paid a sanction and then challenged the sanctions order as part of the appeal from the final judgment in the action. In reviewing an objection based on mootness, the Fifth Court observed that while an appeal becomes moot “when a judgment debtor voluntarily pays and satisfied a judgment rendered against him,” the purpose of that rule is “to prevent appellants from misleading their opponents into believing a controversy is over when it is not.” Thus, “payment on a judgment will not moot an appeal of that judgment if the judgment debtor clearly expresses an intent that he intends to exercise his right of appeal and appellate relief is not futile.” Here, before the attorney paid the sanction, the other side had notice of his intent to appeal when payment was made, so the appeal was justiciable. Kamel v. AdvoCare Int’l, L.P., No. 05-16-00433-CV (March 28, 2017) (mem. op.)

Claims to stop payment to Paxton prosecutors moot and still not ripe—no jurisdiction.

Paxton Mug Shot

The Dallas Court of Appeals was pulled into one of the wide-ranging disputes concerning the prosecution of Texas Attorney General Ken Paxton, this one concerning the payment of private attorneys appointed to prosecute Paxton. The Dallas Court determined that it lacked jurisdiction because the claims were moot and were not yet ripe.

Attorneys were appointed to prosecute Paxton after the Collin County Criminal District Attorney recused his office. The appointed attorneys were to be paid $300 per hour, which was more than fixed $1000 for most court appointed attorneys for indigent defendants under the Collin County local rules, which also apply to appointed prosecutors. However, the local rules also provided “Payment can vary from the fee schedule in unusual circumstances or where the fee would be manifestly inappropriate because of circumstances beyond the control of the appointed counsel.”

On December 11, 2015, the appointed prosecutors sought an interim payment of $254,908.85 from Collin County. Three weeks later, Collin County taxpayer Jeffory Blackard sued seeking a temporary restraining order and injunction preventing payment, asserting that as a taxpayer he had standing to seek to enforce the local rules fixing most fees at a flat $1000. The Collin County judge recused himself, and the taxpayer suit was assigned to County Court at Law No. 5 in Dallas County.

A week after Blackard filed his taxpayer suit, the presiding judge over the criminal prosecution, a Tarrant County judge, approved the payment of the request for interim fees and ordered that the fees be presented to the Collin County Commissioner’s Court for payment. The next day, Blackard filed a supplemental application for temporary restraining order in the Dallas County taxpayer suit, which was denied one day later. Three days after that, only one month after the initial request for interim fees was made, the Collin County Commissioners Court voted to pay. Blackard then filed an amended petition seeking injunctive relief preventing any future requests for attorney’s fees by the appointed prosecutors. The County Court at Law determined that it lacked jurisdiction and granted the defendants’ pleas to the jurisdiction. Blackard appealed.

The Dallas Court began its analysis by noting that mootness and ripeness are threshold issues that implicate subject matter jurisdiction. Rendering opinions under either circumstance violates the prohibition against rendering advisory opinions because such cases present no justiciable controversy.

The Dallas Court held that Blackard’s claims relating to the interim fees were moot because the fees had already been paid and, under Texas law, taxpayers have standing only to seek to enjoin future payments, not to recover funds that have already been paid. Blackard asserted on appeal that his claims fell within the exception to mootness for claims “capable of repetition, yet evading review” because the appointed attorneys stipulated that they anticipated submitting future invoices. But the Dallas Court rejected that exception, which “applies only in rare circumstances.” It noted that the exception had previously only been used to challenge unconstitutional acts performed by the government, and held that the process by which fees would be requested in the future provided sufficient time for Blackard to seek judicial review prior to payment, pointing to the month between the initial request for interim fees and payment.

In addition, the Dallas Court held that claims relating to future invoices were not yet ripe. While it was stipulated that additional fees would be requested, it was not stipulated that the additional requests would be for $300 an hour or otherwise would be inconsistent with the Collin County fee schedule. So the Dallas Court concluded there was no live controversy concerning future requests for fees.

Blackard v. Attorney Pro Tem Kent A. Schafer, et al.