Since the supreme court’s opinion in Rohrmoos Venture v. UTSW DVA Healthcare, 578 S.W.3d 469 (Tex. 2019), the mechanics of proving up attorneys’ fees have received a great deal of thought by practitioners and judges. The Fifth Court’s opinion in In re Estate of Willingham reminds of something more basic as to awards of appellate attorneys’ fees:

“[T]here is no certainty regarding who will represent the appellee in the appellate court, what counsel’s hourly rate(s) will be, or what services will be necessary to ensure appropriate representation in light of the issues the appellant raises … [but] this uncertainty does not excuse a party seeking to recover contingent appellate fees from the need to provide opinion testimony about the services it reasonably believes will be necessary to defend the appeal and a reasonable hourly rate for those services.”

Finding no evidence on that topic, the Court deleted the award of appellate attorneys fees from the judgment and otherwise affirmed. No. 05-20-00235-CV (Dec. 20, 2021) (mem. op.) (applying Yowell v. Granite Operating Co., 620 S.W.3d 335, 355 (Tex. 2020)).

A new set of TRAPs about direct appeals to the Texas Supreme Court takes effect at the start of 2022. It substantially clarifies the procedure for these unusual cases, and aligns the rules about them with other TRAPs about supreme-court proceedings.

Hardy v. Communication Workers of America provides three reminders about the “sham affidavit” doctrine recently applied by the Texas Supreme Court in Lujan v. Navistar, Inc., 555 S.W.3d 79 (Tex. 2018):

• Object. “Hardy did not object to Mathias’s affidavit in her response to the motions for summary judgment, and she did not object to the affidavit during the trial court’s hearing to consider pretrial motions, including the motions for summary judgment. Finally, the record does not show that the trial court ruled, or refused to rule, on an objection to Mathias’s affidavit.” (citations omitted).
• Confirm the claimed inconsistency.  “The 2019 affidavit does not mirror the 2016 affidavit—it is organized differently, it is longer, and it contains more factual detail. However, a side-by-side comparison of Mathias’s statements in the two affidavits does not reveal material contradictions. Nor does Hardy direct us to the specific statements that she asserts are contradictory. Instead, she complains that Mathias fails to explain: (1) why she created a new affidavit, (2) why the new affidavit did not include every statement from the 2016 affidavit, and (3) why certain statements were worded differently.”
• Procedural posture.  “[W]e are not faced with a contradictory affidavit by the nonmovant, seeking to raise a fact issue in order to avoid summary judgment. Instead, Hardy attempts to apply the sham affidavit rule to an affidavit filed by the movant in support of summary judgment.”

No. 05-19-01388-CV (Dec. 10, 2021) (mem. op.).

Yes, it’s kind of a pain, and yes, it comes around every year. But you have a voice in the oft-cited “Super Lawyers” awards, and you can make it heard on the Super Lawyers’  website. Nominations are due by December 16, 2021.

The grant of a no-evidence motion for summary judgment was affirmed when:

“In its response to the no-evidence motion, Great Hans did not specifically identify the supporting proof it wanted considered by the trial court on any specific element nor make any argument or cite to any legal authority in support of its position. Rather, as to each element challenged on the various causes of action, Great Hans recited the element and provided the same response: ‘More than a scintilla of summary judgment evidence is submitted in the record as adopted by reference and as set out above in the traditional summary judgment motion argument on this ground.’ Great Hans did not direct the court to where in its response to the traditional motion it could find the argument and evidence related to the specific element.”

Great Hans LLC v. Liberty Life Service Corp., No. 05-20-00113-CV (Dec. 8, 2021) (mem. op.)

Yes, it’s kind of a pain, and yes, it comes around every year. But you have a voice in the oft-cited “Super Lawyers” awards, and you can make it heard on the Super Lawyers’  website. Nominations are due by December 16, 2021.

This is a cross-post from 600Hemphill, which follows commercial litigation in the Texas Supreme Court:

“[W]e adopt the following two-step inquiry for determining when requests for findings and conclusions that are not required by the rules will trigger the extended ninety-day filing deadline. First, was the non-jury proceeding a type in which the trial court could consider evidence? Second, if so, was there evidence before the court? When the answer to both questions is yes and a party requests findings and conclusions, all parties benefit from the extended appellate timetable.

The first question is categorical, not case-specific. For example, it will be answered yes for a judgment following a bench trial, a default judgment on a claim for unliquidated damages, a judgment rendered as sanctions, and any other judgment that could be based in any part on an evidentiary hearing.

The second question is case-specific and focuses on whether evidence was presented to the trial court, not whether that evidence proved to be necessary in hindsight. In answering this question, it is not relevant whether the evidence presented was disputed, or jurisdictional, or material to an issue later raised on appeal.” Phillips v. McNeill, No. 19-0831 (Dec. 3, 2021) (citations omitted, emphasis added) (applying IKB Inus. v. Pro-Line Corp., 938 S.W.2d 440 (Tex. 1997) and Gene Duke Builders, Inc. v. Abilene Housing Auth., 138 S.W.3d 907 (Tex. 2004) (per curiam)).

“In the motion for summary judgment, the movant must expressly present the grounds upon which the motion is made. A ‘ground’ is a reason the movant is entitled to judgment and is not presented by mere reference to the summary judgment evidence. The nonmovant need not object to a summary judgment motion that presents no grounds because such a motion is insufficient as a matter of law.” Funmilayo v. Aresco, L.P., No. 05-20-00492-CV (Nov. 30, 2021) (mem. op.) (citations omitted).

. . . But in our service.” Cf. Julius Caesar, Act I, Scene III. The key phrases in the return of service in Pro-Fire & Sprinkler, LLC The Law Co. were as follows:

The panel majority concluded this return was defective because (1) the pleading was attached to the door without looking for someone over 16 to receive it, as required by the substituted-service order, and (2) the return was inconsistent, saying both that the pleading was attached to the door and served “in person.” A dissent saw these matters as the sort of “incidental details” that do not require reversal. No. 05-19-01490-CV (Nov. 29, 2021).