The Evolution of Inadequate Security Law in Texas Wanted Dead or Alive: Desperados and Debtors The EPA’s Clean Power Plan and Its Potential Impact on Texas Discovery Objections Abuse in Federal Courts Meet New HBA President Neil Kelly 50-Year Lawyers President’s Awards
Volume 54 – Number 1
Neil D. Kelly 2016-2017 President Houston Bar Association
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contents Volume 54 Number 1
FEATURES Evolution of Inadequate 10 The Security Law in Texas By Jessica Farley, Farrah Martinez and Chance McMillan
Dead or Alive: 14 Wanted Desperados and Debtors By Shawn M. Grady
EPA’s Clean Power Plan and 20 The Its Potential Impact on Texas By Chevazz G. Brown
Objections Abuse 24 Discovery in Federal Courts By Stanley P. Santire
New HBA President 30 Meet Neil Kelly Kelly Takes Office as 32 Neil HBA President
33 50-Year Lawyers 35 President’s Awards
The Houston Lawyer
The Houston Lawyer (ISSN 0439-660X, U.S.P.S 008-175) is published bimonthly by The Houston Bar Association, 1111 Bagby Street, FLB 200, Houston, TX 77002. Periodical postage paid at Houston, Texas. Subscription rate: $12 for members. $25.00 non-members. POSTMASTER: Send address changes to: The Houston Lawyer, 1111 Bagby Street, FLB 200, Houston, TX 77002. Telephone: 713-759-1133. All editorial inquiries should be addressed to The Houston Lawyer at the above address. All advertising inquiries should be addressed to: Quantum/ SUR, 12818 Willow Centre Dr., Ste. B, Houston, TX 77066, 281-955-2449 ext 16, www.thehoustonlawyer.com, e-mail: email@example.com Views expressed in The Houston Lawyer are those of the authors and do not necessarily reflect the views of the editors or the Houston Bar Association. Publishing of an advertisement does not imply endorsement of any product or service offered. ©The Houston Bar Association, 2016. All rights reserved.
contents Volume 54 Number 1
departments Message 6 President’s Milestones Mark HBA’s Commitment
to Profession, Community By Neil D. Kelly
the Editor 8 From The Journey of Volunteerism By Jill Yaziji Lawyers Who 36 Houston Made a Difference
By The Hon. Mark Davidson
Spotlight 37 Committee Senior Lawyers Committee:
Legal Education and Networking By Judy L. Ney
the record 38 off Gindi Vincent: The Dish on Career,
Fashion, Faith and Family By Polly Fohn
Profile in professionalism 39 AVince Ryan Harris County Attorney Trends 40 Legal U.S. Supreme Court Affirms Class
Certification for Tyson Foods Employees Complaining of Overtime Pay Violation By Jill Yaziji
Texas Supreme Court Protects Property Owner’s Right to Family Pet By Kimberly A. Chojnacki ReviewS 42 Media Protagoras Reviewed by Jonathan C.C. Day
Amicus Curiae Reviewed by Polly Fohn
The Houston Lawyer
44 Litigation MarketPlace
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By Neil D. Kelly Andrews Kurth LLP
Milestones Mark HBA’s Commitment to Profession, Community
The Houston Lawyer
he HBA celebrates two important anniversaries this 2016-2017 bar year of programs that demonstrate the HBA’s commitment to the profession and our community. First, this is the 20th year of the Minority Opportunities in the Legal Profession Committee. MOILP promotes the increased representation of, and active involvement in, the legal profession and the HBA by lawyers and law students who are members of historically under-represented ethnic groups. To achieve this goal, the MOILP committee develops and sponsors educational programs for 1L’s at the three Houston law schools. The committee undertakes the significant task of recruiting firms, corporations, government offices, and individuals to hire qualified 1L’s for a summer clerkship program. The committee has extended its programming to include an interview workshop, writing seminar, and workplace presence discussions. Many alumni of the MOILP summer clerkship program continue to be involved with the committee and other aspects of the HBA. To continue the HBA’s tradition of engaging the Houston legal community and with the important work of the MOILP committee as an example, I have made it an ongoing initiative for the HBA to focus on diversity, equality, and inclusion in its programming and service to the legal profession and to the general public. We will also assess the HBA’s current programs and consider proposals to achieve continuing advancement of diversity, equality, and inclusion by the HBA, its sections, committees, and ancillary organizations. This year is also the 10th year of the HBA’s Equal Access to Justice Program. The firms, corporations, and individuals that participate in the Equal Access to Justice Program commit to taking one pro bono case for every five lawyers. The program has become the backbone of support for the HBA’s Houston Volunteer Lawyers—over 17,000 persons have benefitted from valuable pro bono representation by lawyers volunteering their time as Equal Access to Justice participants. To expand the impact of the Equal Access to Justice Program and the opportunities to serve indigent persons in need of legal assistance, the HBA, through Houston Volunteer Lawyers, 6
will expand the assisted pro se program that HVL has operated since 2004. That program served over 6,300 persons last year. All of those services were performed by a single HVL staff attorney, and until now, the program could not expand because of space and financial constraints. The expanded program will be located in the basement of the old jury assembly building at 1019 Congress. The increased space was made available by the Harris County Attorneys’ Office and is administered by the Harris County Law Library. Pro se litigants are encouraged to utilize the library’s resources and work space. Private practice volunteers, assisted by a staff lawyer from HVL, will initially staff the office one day per week; students from Houston College of Law will staff the office one additional day each week. As demand and volunteer resources increase, the intention is to expand office hours. This expanded program is the product of significant effort by many people to whom the HBA gives its thanks, including Harris County Attorney Vince Ryan, Judge Robert Schaffer, Stewart Gagnon, Alistair Dawson, HBA Executive Director Kay Sim, HVL Executive Director Alissa Gomez, Cathy Burnett (at Houston College of Law), and Mariann Sears (head librarian at the Harris County Law Library). Thanks also to the first volunteer lawyers to staff the expanded program, Parker Lee and Patrick Yarborough, both at Andrews Kurth LLP. I am grateful for the opportunity to serve as president of the Houston Bar Association and look forward to celebrating these anniversaries while advancing the mission of the HBA. The HBA does an amazing amount of work for our profession and the Houston area community, for which I thank its members. For some, the HBA is a vehicle for professional education, networking, and advancement. For others, it provides opportunities to participate in community service activities and have a greater impact than individual efforts. For yet others, it is the opportunity to do pro bono work or have direct interaction with persons to serve as a mentor. Still others find value in all of these reasons. Whatever your reason is for being a member, I look forward to working with you and for our organization this year.
from the editor
By Jill Yaziji Yaziji Law Firm
Polly Graham Fohn Haynes and Boone, LLP
Preston Hutson LeClairRyan
Farrah Martinez Attorney at Law
The Houston Lawyer
Taunya Painter Painter Law Firm PLLC
Hon. Jeff Work Work Law Firm
The Journey of Volunteerism
sanctions in federal courts. Shawn Grady gets creative elcome to a new year of The Houston with his piece on judgment collection in Texas. He Lawyer! describes the legal hurdles and the desperado-like efA few years back, I joined The Housforts involved in collection work. ton Lawyer committee hoping to review Our next five issues focus, respectively, on mentorand edit a few interesting articles that ing and volunteerism, current immiare published in the magazine. At that gration matters; the changing legal time, I did not think much beyond that. Our next horizon of LGBT law; juvenile justice; A naturalized U.S. citizen, I came from five issues focus, and the role of Houston lawyers in the a country where private philanthropy respectively, on historical development of Houston. and public funding for an entity such In the mentoring and volunteerism as the Houston Bar Association were mentoring and issue, our authors highlight the innon-existent; each citizen and each atvolunteerism, vestment that we, attorneys, make in torney were left to fend for themselves. current immigration our next generation through the proWith this background, I did not think cess of mentoring. The issue reflects that volunteering for a magazine would matters; the on how mentoring changes lives, bring such value to my personal and changing from judges mentoring interns, to professional growth. But the journey of legal horizon lawyers mentoring school children. volunteerism has been one of the most The immigration issue discusses rewarding ones, right behind a gratifyof LGBT law; detainees in asylum proceedings in ing endorsement from a well-served clijuvenile justice; Houston detention centers; the evoluent or a court win. and the role of tion and present configuration of the Needless to say, then, I am excited Houston Immigration Courts, and to be the Editor-in-chief of The HousHouston lawyers the impact of immigration policy on ton Lawyer this year! As our readers in the historical business needs, among other themes. know, we debut each year of The Housdevelopment of The LGBT issue focuses on the changton Lawyer with our general topics ising laws in this area, from marriage sue. This year’s general issue features Houston. and divorce, to custody and probate practice-oriented articles. Jessica Farproceedings. The juvenile issue highlights the challey, Farrah Martinez, and Chance McMillan discuss lenging nature of juvenile offenses in this information the evolving law of premises liability in light of the age, and the effort to seal and protect juvenile records, Fifth Circuit’s opinion in Jenkins v. C.R.E.S. Manageamong other things. We conclude the year with an ment, LLC, providing both a defense and plaintiff take issue that reflects on the role of attorneys in the legal, on the case. Chevazz Brown writes on the legal chalphilanthropic and economic development of Houston. lenges facing the EPA Clean Power Plan policy, and My hope is that The Houston Lawyer continues the implications for Texas should these regulations to put out award-winning quality content that is survive. Stanley Santire discusses what attorneys ofrelevant to our community of practitioners and beten encounter in litigation: repetitive and abusive disyond. covery objections. He then discusses the possibility of
BOARD OF DIRECTORS President
Neil D. Kelly
Todd M. Frankfort
Alistair B. Dawson
Warren W. Harris
First Vice President
Benny Agosto, Jr.
Second Vice President
Jennifer A. Hasley Hon. Erin Lunceford
Richard Burleson Diana Gomez
Daniella Landers Chris Popov
DIRECTORS (2016-2018) David Harrell Greg Ulmer
editorial staff Editor in Chief
Jill Yaziji Associate Editors
Polly Fohn Farrah Martinez Hon. Jeff Work
Preston Hutson Taunya Painter Editorial Board
Benny Agosto, Jr. Anna Archer Paul Bowers Heaven Chee Jonathan C. C. Day Jason D. Goff Al Harrison Jennifer R. Jenkins Hon. Scott Reiter Link Marni Otjen Hon. Josefina M. Rendon David Stockel Zach Wolfe
Anietie Akpan Erma Bonadero Christiane (C.J.) Chambers Kimberly A. Chojnacki Angela L. Dixon Amy Hargis Matthew Heberlein Sophia L. Lauricella Jeff Oldham Raymond Panneton Kate Shih Matthew D. Walker
HBA office staff Executive Director
Kay Sim Director of Education
Director of Projects
Continuing Legal Education Assistant
Ashley G. Steininger
Communications Assistant /Web Manager
Membership and Technology Services Director
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12818 Willow Centre, Ste. B, Houston, TX 77066 281.955.2449 • www.quantumsur.com Publisher
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By Jessica Farley, Farrah Martinez and Chance McMillan
The Evolution of Inadequate Security Law in Texas
INTRODUCTION Inadequate security cases have received increased attention from Texas attorneys in recent years and it is not hard to understand why. Often, the factual scenarios leading up to the injuries are offensive and the damages severe. For example, an apartment tenant is raped by a shady figure hanging around the complex, despite complaints of his presence to management; an elderly man is mugged while walking to his car and there is evidence that the apartment complex failed to provide minimal security; or a hotel guest is shot and his belongings stolen, all while the hotel failed to provide a security guard to patrol the parking lot despite evidence of prior similar acts in the past. LIMITED EXCEPTION TO THE NO-DUTY RULE Plaintiffs generally contend that the premises owner knew or should have known of the unreasonable risk of harm due to the condition of the premises. Typically, in these cases, the alleged faulty condition is the inadequate security provided by the premises owner to remedy the unreasonable and arguably foreseeable risk of criminal conduct. However, the plaintiff must meet its burden of proof in order to survive summary judgment. Plaintiff must establish that a duty exists, and â€œforeseeability is the beginning, not the end, of the analysis in determining the extent of the duty to protect against criminal acts of third parties.â€?1 Whether a duty exists is a question of law and must be addressed by the court. In general, a property owner owes no duty to protect others from the criminal acts of third parties.2 However, a premises owner that exercises control of a property has a duty to use ordinary care to protect invitees if that owner knows or has the reason to know of an unreasonable and foreseeable risk of harm. As one might imagine, litigation has ensued over what is a foreseeable risk of harm to an invitee, especially since courts have been hesitant to quantify how many pre-
vious crimes make a particular crime or attack predictable. Instead, the Texas Supreme Court in Timberwalk Apartments, Partners, Inc. v. Cain established five factors that a trial court must consider to determine the weight of the evidence: (1) proximity (2) recency (3) frequency (4) similarity, and (5) publicity.3 The Timberwalk Court opined that proximity is met when a crime occurs on the premises at issue or within close vicinity. Property owners have no duty to investigate or request criminal reports of the area, but if the criminal activity is frequent and the media covers the crime, then it is also reasonable to expect the property owner to be aware of the criminal activity. However, crimes that are infrequent, are not of the same nature, or have not received any news coverage are not foreseeable.4 Later in Trammell Crow Central Texas, LTD. v Gutierrez, the Texas Supreme Court expounded on three of the five distinct factors: recency, frequency, and similarity, narrowing further the exception to the no-duty rule.5 The Court reviewed recency and frequency in tandem, noting that a crime is more likely foreseeable if prior crimes occur within a short time period rather than many crimes spreading out over a long period of time.6 Additionally, the Court relied on expert testimony to help resolve the question of whether the criminal conduct is reasonably foreseeable.7 For similarity, the Court examined the nature of the past crimes in comparison with the crime at issue. To meet the similarity requirement, a Plaintiff must demonstrate that the preceding crimes are significantly similar in nature to the crime at issue; however, the crimes do
not have to be an exact match. For example, a number of violent assaults is sufficiently similar to a crime such as rape or murder; conversely, crimes that target businesses are distinguishable from those targeting individuals.8 In the end, the Court’s expansion still favored the property owner and overturned the trial court’s jury verdict in favor of plaintiff. Earlier this year, the Fifth Circuit issued an opinion interpreting current Texas law regarding the duty of the property owner to remedy the condition of inadequate security. In Jenkins v. C.R.E.S. Management, 9 L.L.C., the plaintiff was shot and left for dead after answering his apartment door late one night. The assailants were never identified or apprehended. In the year immediately preceding the attack, there were seven aggravated assaults, 14 residential burglaries, seven motor vehicle burglaries, six thefts, four auto thefts and one sexual assault on defendant’s premises. Plaintiff brought his premises liability case in state court, alleging the defendant had a duty to protect its residents from the unreasonable and foreseeable harm due to the criminal acts of third parties. Defendant subsequently removed the case to federal court on diversity-jurisdiction grounds. After discovery was completed, defendant moved for summary judgment arguing the plaintiff failed to show that the attack was foreseeable in light of the apartment complex’s previous twelve-month criminal history. The district court granted defendant’s motion for summary judgment considering only the prior assaults and a robbery-shooting in its foreseeability analysis. The court deemed the 14 residential burglaries
While Jenkins is a win for plaintiffs, the burden of proof to justify an exception to the no-duty rule is still one to heavily consider prior to filing a premises liability suit based on an inadequate security condition.
were not relevant and failed to consider them in its analysis. The Court of Appeals for the Fifth Circuit reversed and remanded. The Court agreed with the district court’s decision to keep out the crimes of theft from its foreseeability analysis but held that the prior residential burglaries were relevant and should have been considered in the district court’s foreseeability analysis. The district court classified the residential burglaries as “property crimes,” whereas the Fifth Circuit held that these crimes created a fact question as to foreseeability. Jenkins permits the trial court to consider a broader base of crimes and gives plaintiffs more substantive arguments to defeat summary judgment, which is often a considerable challenge plaintiffs face in getting to trial or settlement of the case. In light of the Jenkins opinion, should plaintiff’s attorneys file inadequate security cases in federal court? Probably not. Jenkins will likely add confidence and some fire power to plaintiffs’ arguments when faced with a summary judgment, but will not drastically change the landscape of inadequate security law in federal court. IMPACT ON PLAINTIFF Inadequate security cases are appealing for plaintiffs’ attorneys. They usually have intriguing facts and high damages. Yet, many factors should be considered before taking on these cases. Not only do these cases tend to be expensive, especially because they often require expert testimony; but they can also easily fall victim to a summary judgment if not carefully developed. Here are some issues to consider: Certainly the most appealing part of inadequate security cases are non-economic damages. There are no cap issues to worry about when working up these cases, and while the Texas Supreme Court has been consistently on the side of the property owner, even in cases of shocking lack of adequate security, the damages in these cases are typically thehoustonlawyer.com
high and the crimes committed heinous. Plaintiffs’ attorneys should feel confident that they have a shot at keeping a large pain-and-suffering and mental anguish award if the damages are justified. Likewise, the scariest thing about working up this type of case is the expense. To prepare adequately these cases for trial, the case will likely cost over $100,000.00 in expenses. And, even after adequate preparation, it is quite feasible the case would fall victim to the exacting summary judgment. This is why the Jenkins case is so significant for plaintiffs’ practice. Jenkins is a win for plaintiffs because it expanded the definition of what constitutes similar crimes, and hence, foreseeability. Nevertheless, attorneys should not throw caution to the wind. Attorneys considering taking on inadequate securities cases should still tread lightly when navigating the waters and be cognizant of the tough standards, expenses and potential risks associated with working up these cases.
IMPACT ON PREMISES OWNER (DEFENDANT) To be sure, the Jenkins Court arguably expanded the scope of relevant prior crimes that a court must compare to the crime at issue when analyzing whether the crime was foreseeable and determining whether a premises owner had a duty to protect an invitee from that crime. However, even prior to Jenkins, Texas courts had often considered burglaries to be violent crimes. Thus, the Jenkins Court’s determination that prior residential burglaries were violent crimes that were relevant to the court’s foreseeability analysis of a shooting on the premises does not necessarily signify a shift in Texas law in that respect. The Court of Appeals for the Fifth Circuit, sitting in diversity jurisdiction, interpreted the Texas Supreme Court’s holdings in Trammel Crow and Timberwalk, and held that the district court in Jenkins erred in excluding from its foreseeability analysis all burglaries and thefts that occurred in the vicinity during the year preceding the shooting at issue, regardless of whether
the burglaries occurred in residences or vehicles. The Fifth Circuit reversed the district court’s granting of summary judgment for the premises owner because, according to the Fifth Circuit, the district court misinterpreted Trammel Crow in finding 14 prior residential burglaries were “property crimes” irrelevant to the foreseeability analysis of a “personal crime” like a shooting. Thus, Jenkins may provide persuasive authority for plaintiffs in Texas courts to broaden the scope of prior relevant crimes that courts consider in their foreseeability analysis and thereby bolster their odds of withstanding summary judgment. The Jenkins Court not only reversed summary judgment for the premises owner but also noted that a fact issue existed as to whether the shooting was foreseeable in light of the 14 prior residential burglaries that should be considered in the court’s foreseeability analysis. As a result, plaintiffs may cite to Jenkins to support an argument that the larger scope of prior relevant crimes cre-
ates a fact issue as to the foreseeability question and precludes summary judgment. Historically, the odds of withstanding summary judgment in these types of cases have been stacked against plaintiffs, given that the existence of a duty for a premises owner to protect an invitee from a third party’s criminal act is an exception to the general rule. Jenkins may serve as persuasive authority for a plaintiff to advance past the summary judgment stage and get in front of a jury. In response to such arguments, premises owners should emphasize that whether the requisite duty existed is still a question of law for the court to determine. They should remind the court that the existence of such a duty is still the exception to the rule, and, even if the scope of relevant prior crimes considered is broadened, if the court’s analysis under the five Timberwalk factors weighs in favor of finding the crime was not foreseeable, then the court must find no duty existed and grant summary judgment.
CONCLUSION In Jenkins the Court of Appeals for the Fifth Circuit analyzed the two major Texas premises cases dealing with inadequate securities, Timberwalk and Trammell. The Jenkins Court expanded the scope of what a court should consider when conducting its foreseeability analysis. However, Jenkins is merely persuasive authority to state courts. While Jenkins is a win for plaintiffs, the burden of proof to justify an exception to the no-duty rule is still one to heavily consider prior to filing a premises liability suit based on an inadequate security condition. Jessica Farley is a partner at Norton Rose Fulbright US LLP. Her litigation practice focuses on defending companies against personal injury, economic damages, and product liability claims. She is a member of the Texas Association of Defense Counsel. Chance McMillan is an associate at Thurlow & Associates in Houston, Texas. His practice is dedicated to personal injury and civil litigation.
Farrah Martinez is the founder of Farrah Martinez, PLLC. Her practice focuses on representing plaintiffs in personal injury and accident cases. She is also an associate editor of The Houston Lawyer Magazine. Endnotes 1. Lefmark Management Co. v. Old, 946 S.W. 2d 52 at 59 (Tex. 1997). 2. Id at 53. 3. Timberwalk Apartments, Partners, Inc. v. Cain, 972 S.W.2d 749, 759 (Tex. 1998). 4. Id. (Cain, the Plaintiff was sexually assaulted in her apartment. There were no sexual assaults in the last ten years. There was a car burglary, a car theft and Cain’s roommate’s tires were slashed by her ex-boyfriend. However, six violent crimes occurred in the last year within a one-mile radius of Timberwalk but there was no media coverage of those assault type crimes. The court ruled the criminal act against Cain was not reasonably foreseeable). 5. Trammel Crow Central Texas, Inc. v Gutierrez, 267 S.W.3d 9 (Tex. 2008). 6. Id at 15. In Trammel, the Court held that ten violent crimes in a twenty-three month period was not as reasonably foreseeable as a violent crime every three months. 7. Id at 16. 8. Id. 9. In Jenkins v. C.R.E.S. Management, L.L.C., 811 F.3d 753 (5th Cir. 2016).
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By Shawn M. Grady
Wanted Dead or Alive:
Desperados and Debtors
Desperados and Debtors Debtors, welcome to Texas. No, really... please stay, build a mansion or a ranch, buy a car, start a limited liability company, and thrive. Creditors beware! Since before its founding, Texas has served as a safe haven for debtors.1 By the mid-1820s, Texas had garnered a reputation as a haven for debtors, thanks, in part, to local judgesâ€™ reluctance to enforce foreign debts.2 By the time of statehood in 1845, Texas had the dubious distinction of being the only state in the United States with an exemption provision in its constitution, shielding debtor property from seizure by creditors.3 In 1846, in the debates over the Wisconsin Constitution, a notable delegate railed against a proposed exemption clause, noting that [n]othing similar... can be found in the constitutions of any state except Texas, and surely we will not go to that noted asylum for all the desperadoes in the country for examples of public morals and correct laws on the collection of debts.4 From this history, Texas has carried on its traditional bias toward debtors in the passage of modern laws. Besides its generous exemptions laws, including the well-known homestead exemption, Texas has a wide range of laws on the books that make it difficult for creditors to collect debtsâ€”from a prohibition on wage garnishment to very favorable protections for various partnership business organizations. With this in mind, it bears repeating: creditors beware! Your debt, or your judgment, may not be worth the paper it is printed on. Hence, creditors should strongly consider enlisting a trained and experienced hired gun to catch their desperado... especially in Texas. Hostile Territory In 2013, the National Consumer Law Center, a non-profit organization that works for consumer justice, ranked Texas in the top tier of most debtor-friendly states in the country, based on the level
of protection Texas’ exemption laws granted to debtors.5 In addition to exemption laws, Texas has favorable laws that shield individuals from business debt, even in some questionable circumstances. The following is a brief survey of this creditor-hostile legal territory, which serves as the bedrock for debtor protection in this State. Homestead In Texas the homestead is the sacred cow of asset exemptions. This State has numerous laws that provide unique protections to an individual’s primary residence. Texas is one of a small handful of states that provide its residents with a homestead exemption of unlimited value, restricted only by acreage limits.6 Some states only offer a homestead exemption of amounts as low as $5,000.7 The federal homestead exemption currently protects $22,975 of equity in one’s home in bankruptcy.8 Further, Texas law preserves this homestead exemption for debtors in numerous ways, including after death.9 While a detailed examination of the extensive Texas law protecting a Texans’ homestead rights is beyond the scope of this article, it is safe to say that, in most cases, debt and judgments that are not based on a security interest in the homestead cannot touch such property, if properly designated. However, there is at least one notable exception. After death, an individual’s homestead is subject to creditor’s claims, including unsecured claims, if the individual is not survived by a spouse or minor child.10 This exception is particularly beneficial to funeral homes and nursing homes, but can also benefit a wide array of unsecured creditors.11 Garnishment of Wages Almost all states permit garnishment of wages to satisfy judgments.12 Texas is one of the few states to prohibit the garnishment of wages.13 Texas law expressly provides that current wages for personal services are exempt, and not subject to garnishment.14 In addition,
commissions, up to a certain amount, are exempt.15 However, wages cease to be current upon being paid to and received by the wage earner, and thus are no longer exempt and protected from garnishment, once paid.16 By contrast, social security and veterans’ benefits remain exempt and protected even after these funds are deposited in a bank account and commingled with other funds.17 A notable exception, or distinction, is that compensation due to an independent contractor is not exempt.18 Courts employ a ‘right to control’ test to determine whether a worker is an employee or independent contractor, and whether his or her income is exempt.19 This issue may arise when the debtor is paid as an employee by a company in which he or she has ownership interest.20 Fraudulent Transfer Actions A fraudulent transfer is an asset transfer made by a debtor to defeat or evade a creditor’s collection efforts. A fraudulent transfer action enables a creditor to negate or undo the effect of a transfer. Like many states, Texas has essentially adopted the Uniform Fraudulent Transfer Act (TUFTA) which provides creditors with a powerful weapon to void fraudulent transfers.21 However, the Texas Supreme Court has recently set a harsh precedent which interprets TUFTA’s language to create a statute of repose, as opposed to a statute of limitations, and thus further restricting creditors’ time to discover and prosecute fraudulent transfer actions.22 As an additional hurdle, for post-judgment creditors, Texas law requires the onerous step of filing a separate lawsuit to bring a fraudulent transfer action, as opposed to a motion seeking a post-judgment remedy.23 If judgment has not been obtained, the creditor must try the merits of its underlying debt claim as part of the fraudulent transfer suit.24 Charging Orders All states have laws which permit creditors of owners of limited liability companies, general partnerships, or limited
partnerships to obtain a charging order against the debtor’s ownership interest in the LLC. Debtor-friendly states, such as Texas, specify that the charging order is the creditors’ exclusive remedy regarding the member or partnership interest,25 as opposed to dissolution and/or some type of foreclosure on the interest. In Texas, while the charging order creates a lien against the distributions owed to the judgment debtor, the creditor is not permitted to foreclose on the lien.26 However, there is a Texas appellate opinion which opens the door for another postjudgment remedy, the receivership.27 Piercing the Veil Creditors may pierce the legal shield of a corporate entity and collect against individuals behind the entity via an equitable remedy called “piercing the veil.” Not surprisingly, Texas law offers use of this remedy only in exceptional circumstance.28 In 1989, the Texas Legislature passed a law that limited Texas courts’ interpretation of the veil piercing statute, which permitted piercing the veil for constructive fraud, with the statutory requirement that actual fraud must be shown.29 Creditor’s Oasis of PostForeclosure Deficiency Actions Although Texas law has statutory and case law that are hostile to creditors, fear not. There are hidden oases in the Texas legal landscape for those experts who know the path, which can provide inexpensive avenues for relief. For example, for lenders seeking to collect post-foreclosure deficiencies, the Texas Supreme Court has recently provided creditors with an ace-in-the-hole to obtain liability. The Court effectively squashed a debtor’s most potent defense to a post-foreclosure collection action— the fair market value (FMV) defense. After foreclosure, a debtor is credited for the foreclosure sale price against his or her outstanding debt, and the remaining debt is known as a deficiency. By Texas statute, a debtor may reduce or offset a thehoustonlawyer.com
deficiency debt by pleading and proving this statutory FMV defense, which increases the credit afforded to a debtor from the foreclosure sale price to the FMV of the foreclosed property at the time of foreclosure.30 Because properties in foreclosure are sold at an auction, as is, the sale price is usually much lower than FMV, which is based in part on comparable sales of properties sold without the stigma of foreclosure. Regardless of the relevance of FMV to foreclosure, the Texas Legislature has empowered debtors with this FMV defense against creditors’ actions to collect deficiencies. In Moayedi v. Interstate 35/Chisam Road, L.P., the Texas Supreme Court held in a case of first impression that a debtor’s contractual waiver of this statutory FMV defense was both constitutional and aligned with public policy.31 Even further, the Court blessed the most generic “waiver of defenses” clauses as effective to waive this statutory FMV defense. In effect, most loan documents with boilerplate language will contain a generic “waiver of defenses” clause and therefore serve as an effective waiver of a debtor’s FMV defense.32 Prior to Moayedi, debtors had argued that the law was not completely settled, and that a more specific waiver clause was necessary to waive the FMV defense or that public policy prohibited such a waiver, in an effort to defeat summary judgment, and gain some leverage in settlement negotiations. Now, Moayedi removes this line of argument and source of potential leverage for most debtors. Typically, in these deficiency actions, the debtor’s strategy is to create a fact issue to survive summary judgment, or at least create doubt about it, to push the case to trial before a jury, pitting the “greedy” bank against the “victim” debtor. To this end, an appraisal or other evidence of FMV of the foreclosed property could serve as powerful evidence for the debtor. With Moayedi, this type of evidence will never see the light of day in almost all cases. In sum, Moayedi should make the col16
lection of deficiency debt easier, from less motion drafting and reduced legal bills in collection actions, stronger bargaining position in settlement negotiations, to more certainty on waiver of defense language in loan documents. Even still, while the cost to obtain the judgment may have gone down, the postjudgment collection territory remains hostile. The Tracker To hunt most desperados, you need a tracker. Just as the trackers in Western films, your tracker needs to have a highly trained eye, one who can connect the dots amid the rugged terrain. Today, there is so much information from so many sources that efficiency can only be gained by experience dealing with the terrain. Information on debtors is readily available on numerous proprietary databases, such as Accurint, which makes available searchable data and public records nationwide from thousands of databases of individuals and businesses. Information can also be readily obtained from various websites, public records, and with phone calls. A good tracker must quickly discard most of the data and focus-in on the useful data, and conduct selective follow-up searches. In most cases, effective searches require detective work. A professional tracker such as a private detective is ideal for this task, at least in the beginning. These professionals provide the best tracker services, usually at lower rates than attorneys. For this reason, many firms employ in-house private investigators.33 This detective work is important from the start, to give the creditor information necessary on whether to spend money to pursue their debtor and assets. Of course, pre-suit discovery is no substitute for discovery in litigation, especially answers made under the hot lights of an oral deposition. The Hired Gun So, you search for assets, demand pay-
ment, and then sue. What’s the big deal? A collection agency can perform asset investigation and demand payment. And, any litigation attorney can file a lawsuit. Why do you need to hire a collections attorney to handle litigation? Pre-suit, collection attorneys can better evaluate the debtors’ estate and have more tools to develop collection strategies to fit the situation and the creditordebtor relationship. For example, in situations where the creditor seeks to preserve its relationship with its debtor, a collections attorney can prepare modified agreements, including forbearance and repayment agreements, designed to maintain a business relationship. Even in litigation, there are numerous actions and strategies that are unique to collections work, both before and after judgment. Most of these actions are detailed and technical in nature, must be executed quickly, and are not litigation tactics employed in other types of litigation, such as pre-judgment writs, temporary restraining orders, etc. Further, the attorney must also coordinate these actions with various officials, including court clerks, constables, sheriffs, and receivers. Strategically, collections cases are different from other litigation in that the threat of the assets skipping town are much greater. While the main goal is typically settlement, collections attorneys must employ a strategy directed toward the choice assets, rather than against the debtor. For example, discovery strategy isn’t so much about obtaining judgment, but rather finding non-exempt assets and evaluation of the debtor’s estate. Further, in some actions, success hinges on efficiency and keeping litigation costs down, which is at a premium in collection lawsuits. In addition to litigation skills, a good collections attorney should have a practical knowledge of a diverse set of collections-related law, including exemption law, creditors’ law, bankruptcy law and procedure, trusts and estates, probate, property, real estate, partnership and
corporations, marital property, and tax law. Finally, some collection lawyers also specialize in specific debt situations governed by complex laws, most notably in the areas of construction or oil and gas. These areas usually involve complex lien laws dealing with creditors’ rights. The Ambush Sometimes the best decision is to just wait it out, or walk away. A good collections attorney should advise his or her client to avoid throwing good money after bad. As any litigation attorney knows, lawsuits can bring expensive surprises. Besides the obvious threat of bankruptcy, creditors can find themselves stuck in hotly contested and expensive litigation involving unforeseen counterclaims. A collections attorney should always discuss the creditor’s relationship with the debtor, and track down information that is important to assess the debtor’s behavior and motives. Does the debtor have the resources and motive to “lawyer-up” and hire competent counsel to muck-up the litigation? If the debtor has already hired counsel, what is his or her reputation? Is the debtor a flight risk? Has the debtor built a wall of asset protection which makes pursuit not worth the risk? In sum, not every desperado is worth chasing, and some may take you on a rough ride through some thorny Texas territory. Shawn M. Grady is an associate with, Sheehy, Ware & Pappas, P.C., a Houston litigation firm. His practice focuses on commercial and consumer collections work for banks, nursing homes, construction companies, oil and gas companies, and small businesses. Endnotes 1. Joseph McKnight, Protection of the Family Home from Seizure by Creditors: The Sources and Evolution of a Legal Principle, 86 SOUTHWESTERN HIST. Q., 369, 375 (1983). 2. See, id. 3. Bernard R. Trujillo, The Wisconsin Exemption Clause Debate of 1846: An Historical Perspective on the Regulation of Debt, 1998 WISC. L. REV. 747, 752 n.18 (1998).
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4. Id. at 752 (quoting The Convention of 1846, at 647-48 (Milo M. Quaife ed. 1919). 5. No Fresh Start, How States Let Debt Collectors Push Families into Poverty, National Consumer Law Center (NCLC), 2013, available online at https://www.nclc.org/issues/no-fresh-start.html 6. See Congressional Research Service, Homestead Exemptions in Bankruptcy After the Bankruptcy Abuse Prevention and Consumer Protection Act (BAPCPA), August 25, 2011, available online at http://nationalaglawcenter.org/wp-content/uploads/assets/crs/R40891.pdf 7. See id.; see also TEX. PROP. CODE § 42.001. 8. 11 U.S.C. § 522 (b). 9. TEXAS ESTATES CODE § 102.004. 10. See id. 11. Nursing homes may have top priority claims in probate, along with funeral service, as expenses for last illness, if the decedent died in the nursing home. See TEXAS ESTATES CODE § 355.102. 12. Paul Kiel, ProPublica, and Chris Arnold, NPR, Old Debts, Fresh Pain: Weak Laws Offer Debtors Little Protection, Sept. 16, 2014, available online at https://www.propublica.org/article/old-debtsfresh-pain-weak-laws-offer-debtors-little-protection. 13. See id. 14. TEX. CIV. PRAC. & REM. CODE § 63.004; see TEX. PROP. CODE § 42.001(b)(1); see also TEX. CONST. ART. XVI, § 28. 15. TEX. PROP. CODE § 42.001(d). 16. Brink v. Ayre, 855 S.W.2d 44, 45 (Tex. App.— Houston [14th Dist.] 1993, no writ); see also Hennigan v. Hennigan, 666 S.W.2d 322, 324 (Tex. App.—Houston [14th Dist.] 1984, writ ref’d n.r.e., 677 S.W.2d 495 (Tex. 1984)). 17. Philpott v. Essex County Welfare Bd., 409 U.S. 413, 415-16 (1973) (social security benefits); Porter v. Aetna Cas. Co., 370 U.S. 159, 160-61 (1962) (veteran’s benefits).
18. Hennigan, 666 S.W.2d at 324-25; see also Campbell v. Stucki, 220 S.W.3d 562 (Tex. App. —Tyler 2007, no pet.). 19. Karlseng v. Wells Fargo, N.A., No. 05-13-01734CV, 2014 WL 7232734, at *2-3 (Tex. App.—Dallas 2014, pet. denied) (mem. op.). 20. Id. 21. TEX. BUS. & COM. CODE § 24.001 et. seq. 22. Mark Torabi, Judgment Day: Identifying Fraudulent Transfers Before It’s Too Late, TEXAS BAR JOURNAL, May 2015 (discussing Nathan v. Whittington, 408 S.W.3d 870, 875 (Tex. 2013, per curiam). 23. Kennedy v. Nudnall, 249 S.W.3d 520 (Tex. App.— Texarkana 2000, no pet.). 24. John Mayer, Fraudulent Transfers and Piercing the Corporate Veil, State Bar of Texas – Collections and Creditor’s Rights Course (2011), Chapter 10, at p.1. 25. TEX. BUS. ORGS. CODE ANN. § 101.112 (limited liability company), § 152.308 (general partnership), § 153.256 (limited partnership). 26. Id.; see also Elizabeth N. Kozlow, Note and Comment: A Charging Order Conundrum: Is It Really the “Exclusive Remedy” of an LLC Member Judgment Creditor?, 63 BAYLOR L. REV. 884, 892 (2011). 27. Stanley v. Reef Security, Inc., 314 S.W.3d 659, 671 (Tex. App.—Dallas 2010, no pet.). 28. Mayer, supra note xxiv, at pp. 10-11. 29. Id. 30. See TEX. PROP. CODE § 51.003. 31. Moayedi v. Interstate 35/Chisam Road, L.P., No. 12-0937, 2014 WL 2619524, at *4 (Tex. Jun. 13, 2014), 32. See id. at *5. 33. My firm employs Fred Clark, who has been an active private investigator in Texas for twentyfive years.
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By Chevazz G. Brown
The EPA’s Clean Power Plan and Its Potential Impact on Texas
n August 2015, the Environmental Protection Agency (EPA) released its final Clean Power Plan (CPP) as part of the federal government’s effort to reduce carbon dioxide emissions from existing U.S. power plants by nearly a third from 2005 levels by 2032.1 To reach this goal, the CPP establishes emission reduction goals for each state.2 Texas, the nation’s leader in carbon dioxide emissions and energy production, must reduce its carbon dioxide emissions by 33% from 2012 levels by 2030.3 If the CPP survives pending legal challenges, the potential impact on the electric generation industry, particularly in Texas, will be profound. Over the past century, power generation in the U.S. has seen a dramatic evolution due largely to market conditions, regulatory forces, and technological advances. Amid this change, the harmful effects of man-made greenhouse gases, mainly carbon dioxide, has been the subject of much discussion. Global temperatures are rising at unprecedented rates and humans are to blame for it.4 As temperatures rise, scientists predict and already see cataclysmic effects on our environment, including rising sea levels, destruction of ecosystems, worsening of weather patterns, and poor air quality affecting public health. In 2013, the U.S. emitted approximately 5,278.6 metric tons of carbon dioxide into the earth’s atmosphere.5 Texas led the nation, accounting for approximately 12%, nearly twice as much as the second largest emitter, California.6 Considering population size, Texas ranks 15th on a per-capita basis.7 Until implementation of the CPP, no federal law directly regulates carbon dioxide emissions. This is true despite passage of the federal Clean Air Act (CAA) more than 50 years ago.8 Originally enacted in 1963, the CAA is a comprehensive law regulating air emissions to protect public health and public welfare and to regulate emissions of hazardous air pollutants. The EPA bases its authority to promulgate its CPP on Sec-
tion 111(d) of the CAA, which requires states to establish EPA-approved existing source performance standards for certain categories of industrial facilities. Relying on the CPP and in response to President Obama’s Climate Action Plan, the EPA implemented rules to address carbon pollution from (a) new power plants and (b) modified, reconstructed, and existing power plants.9 In October 2015, the EPA promulgated emission standards for new, modified, and reconstructed power plants.10 In conjunction with this effort, in August 2015, the EPA issued its final version of the CPP, creating emission standards for existing U.S. power plants.11 The CPP requires existing U.S. power plants to cut carbon emissions by 32% from 2005 levels by 2030 and requires states to submit implementation plans by September 2016 (or by 2018, with EPA-approved extensions). To achieve the CPP’s overall reduction goal, emission reduction requirements are established for each state based on a variety of factors. As stated above, Texas must reduce its carbon emissions by 33% from 2012 levels by 2030. The CPP purports to give states the flexibility to meet the state-specific emission targets. For example, targets may be achieved through an “emission standards” plan (establishing emissions standards for individual power plants) or a “state measures” plan (providing for a mix of measures to achieve compliance). Additionally, the EPA identified three “building blocks” to guide states in achieving compliance: (1) increasing the
operational efficiency of existing coalfired power plants; (2) shifting electricity generation from higher emitting fossil fuel-fired steam power plants to lower emitting natural gas-fired power plants; and (3) increasing electricity generation from renewable sources of energy such as wind and solar. Although the EPA dropped demand-side energy efficiency programs as an additional building block in its final version of the CPP, states may nonetheless incorporate it in their implementation plan. With these building blocks, states may employ any one, or any combination of, them to achieve compliance. Emission reductions also must be shown by 2022. After the EPA released its final CPP, like most major EPA regulations, it quickly became the subject of intense litigation. Numerous states, including Texas, and industry groups filed various suits in different jurisdictions challenging the CPP. The lawsuits have been consolidated in West Virginia et al. v. EPA et al. pending in the U.S. Court of Appeals for the District of Columbia.12 Numerous other states, municipalities, and environmental groups have intervened in the case in support of the CPP. In February 2016, the U.S. Supreme Court stayed implementation of CPP pending resolution of the case in the court system. Meanwhile, the D.C. Circuit expedited the consolidated case, with oral arguments scheduled for September 2016.13 It is unknown how long before the case will be resolved in the D.C. Circuit. Undoubtedly, the losing side will appeal the case to the U.S. Supreme Court. This delay will likely im-
Over the past century, power generation in the U.S. has seen a dramatic evolution due largely to market conditions, regulatory forces, and technological advances. Amid this change, the harmful effects of man-made greenhouse gases, mainly carbon dioxide, has been the subject of much discussion.
pact the timetables established by the EPA for implementation of the CPP. As the nation’s leader in carbon dioxide emissions and energy production, Texas stands to be impacted the most by the CPP. While some anticipate harmful impacts by the CPP in Texas, others view it as an economic opportunity in light of what Texas is already doing. Increased electricity generation from renewable sources of energy such as wind and solar is one of the enumerate ways to achieve compliance with the CPP. Over the past several years, Texas has become a leader in this space. For example, Texas generates more energy from wind than any other state and ranks first in both installed and underconstruction wind capacity.14 In 2015, Texas produced enough wind energy to power the equivalent of 4.1 million average American homes.15 By 2030, this number is projected to increase to 15.4 million homes.16 Additionally, the Texas wind energy industry supports over 24,000 wind-related jobs.17 As the industry grows, it is likely that the number of wind-related jobs will correspondingly increase. Texas also is a leader in solar energy. The Solar Energy Industries Association ranks Texas 10th in installed solar capacity, with an estimated 534 MW of installed solar capacity—enough to power 57,000 homes.18 The Texas solar industry also supports over 7,000 solarrelated jobs. Finally, Texas ranks first in the nation in solar resource potential.19 Considering these facts, the outlook for growth and sustainability for wind and solar forms of energy in Texas is promising. There remains concern, however, that the current and potential capacity for renewable forms of energy in Texas cannot meet demand, or adequately or timely replace the energy output of coal-fired power plants. The CPP may also impact the system that brings power to 24 million Texans. In October 2015, shortly after the EPA issued its final CPP, the Electric Reliability Council of Texas (ERCOT), thehoustonlawyer.com
which manages about 90 percent of the state’s electric power load, released its updated analysis of the CPP’s impact on the Texas grid.20 ERCOT predicts early retirement of at least 4,000 MW of coalfired generation capacity in the ERCOT region and the addition of more than 14,000 MW of utility-scale solar power, 9,000 MW of wind capacity, and nearly 3,000 MW of new gas-fired combustion turbines. According to ERCOT, the loss of coal-
fired power plants in a short time-frame, combined with the addition of less reliable renewable power generators, creates a potential risk for lack of operational reliability. In time, technological advances and improvements in operations may address these concerns. ERCOT also predicts the CPP to increase, by 2030, retail power prices in Texas by up to 16 percent. This price hike does not include costs associated with new transmission projects or other
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capital improvements that may be needed to achieve compliance.21 Despite this forecast, groups view the CPP as an opportunity for economic growth. The Environmental Defense Fund (EDF) points to Texas as the nation’s leader in natural gas production, wind power generation, and its growing cleantech and solar sectors as catalysts for job growth and economic development.22 The EDF also predicts water savings, due to less demand for water by coal-fired power plants, in addition to benefits to the public health with improved air quality. One thing is for certain: Regardless of the outcome of West Virginia et al. v. EPA et al., it is anticipated that legal challenges will remain and linger for years. The type and extent of litigation, however, is difficult to predict. In 2014, after the U.S. Supreme Court upheld the EPA’s cross-state emissions rule for power plants, which required several states to reduce power plant emissions of nitrogen oxides and sulfur dioxide that cross states lines, parties retained the right to bring new legal challenges to the rule’s application—so-called “asapplied” challenges. Affected parties, including states, will have the ability to bring as-applied challenges to the CPP. As Texas stands to be affected most by the CPP, it is likely that many as-applied challenges will originate from the state. Other factors that will shape the postdecision litigation landscape include the actual outcome of the case (e.g., whether the U.S. Supreme Court, which will have final say, upholds or strikes down the CPP in whole or in part); action by the EPA post-decision (e.g., how it establishes new timetables and deadlines); and the Texas energy market (e.g., how it responds to the new regulatory landscape). As the debate over the CPP’s legality, fairness and effectiveness continues, the reality of global warming and its disastrous, irreparable consequences remain. The CPP provides at least some impetus for Texas to reduce its carbon
dioxide footprint. And, if the CPP ultimately becomes law, Texas will find a way to achieve compliance. Texas, however, should not need a federal mandate to be incentivized to reduce its emissions; it should be doing so and is in fact already doing so. But more needs to be done. Chevazz G. Brown is a partner in the Houston office of Jackson Walker LLP. He specializes in helping clients resolve a broad range of business and commercial disputes according to their business objectives. Endnotes
1. See Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units,” 80 Fed. Reg. 64,662 (October 23, 2015) (“Carbon Dioxide State by State Study). 2. Id. 3. Id. 4. See Fifth Assessment Report, United Nations Intergovernmental Panel on Climate Change (IPCC), September 2013-November 2014. 5. U.S. Energy Information Administration EnergyRelated Carbon Dioxide Emissions at the State Level, 2000-2013, October 2015, p. 6-7. 6. Carbon Dioxide State by State Study, p. 6-7. 7. Id. 8. See 42 U.S.C. § 7401 et seq. 9. See 80 Fed. Reg. 56593 (Oil and Natural Gas Sector: Emission Standards for New and Modified Sources). 10. See 80 Fed. Reg. 64510 (October 23, 2015). 11. See 80 Fed. Reg. 64661 (October 23, 2015). 12. West Virginia et al. v. U.S. Environmental Protection Agency, et al., No 15-1363, in the United States Court of Appeals for the District of Columbia. 13. Oral argument, originally scheduled for June 2, 2016, were delayed by the D.C. Circuit until September 2016 to allow for en banc consideration. This decision may actually expedite the case. 14. See American Wind Energy Association, U.S. Wind Energy State Facts, available at http://awea. files.cms-plus.com/FileDownloads/pdfs/texas. pdf. 15. Id. 16. Id. 17. Id. 18. Solar Energy Industries Association, Top 10 Solar States Countdown, available at http://www. seia.org/sites/default/files/resources/Top%20 10%20Solar%20States_2015_PRINT-final.pdf. 19. State Energy Conservation Office, Texas Solar Energy, available at http://www.seco.cpa.state. tx.us/re/solar/. 20. Electric Reliability Council of Texas, Inc., ERCOT Analysis of the Impacts of the Clean Power Plan, Final Rule Update, October 2015, available at http://www.ercot.com/content/news/presentations/2015/ERCOT_Analysis_of_the_Impacts_ of_the_Clean_Power_Plan-Final_.pdf. 21. Id. p. 1. 22. Environmental Defense Fund, Well Within Reach, How Texas Can Comply with and Benefit from the Clean Power Plan, October 2015, available at https://www.edf.org/sites/default/files/ content/cpp-texas_report.pdf.
HOUSTON LAW REVIEW PRESENTS
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By Stanley P. Santire
Discovery Objections Abuse in Federal Courts Y
“...objecting to discovery requests reflexively– but not reflectively...” 1
ou open the certified mail envelope and shake it. Out slides a cover letter and a 13-page document from the opposing party. The letter is brief. A single sentence says you are receiving answers to interrogatories in a federal court case. When you wrote the interrogatories you tried to craft them to be clear, concise, and relevant questions. Despite this, at the top of the attached document you find the word “Answers” preceded by the word “Objections.” You wonder how much to follow is dedicated to those objections rather than the information to which you believe you are
entitled. After all, you spent hours coming up with interrogatories in hopes of finding out what the other side knows or does not know, getting a confirmation of what you suspect and believe is relevant to the case and, of course, at least some of the basis for the contentions broadly stated in the opposing pleadings. Very quickly you know one thing. By putting the word “Objections’ before the word “Answers,” the role of responses to the interrogatories intended by your opponent has a priority that is the reverse of your intention in drafting the interrogatories. The result seems driven more by a reflexive desire to object rather than reflect on how to respond. One court characterized this as “...objecting to discovery requests reflexively— but not reflectively....”2 General Objections: Misused Boilerplate Often lawyers will receive discovery responses that start with this phrase centered in bold letters: GENERAL OBJECTIONS. Sometimes the number of general objections will be greater than the number of interrogatories. MerriamWebster Dictionary says the adjective “general” means “relating to, or affecting all the people or things in a group.” That is no help. Black’s Law Dictionary says a “general objection” is an “objection to evidence that does not say why the evidence is inadmissible.” Nietzsche said that to know the “how” we must know the “why.”3 If the lawyer receiving the objections is not told the “why,” or, better put, the specifics as to why the objections are being made, how can she know “how” to deal with these objections? Putting aside the philosophical distinction between “why” and “how,” there is of course a more authoritative source: Federal Rules of Civil Procedure. There the word “general” appears several times. Unfortunately, the phrase “general objection” is not there. Instead, the Federal Rules say the “grounds for an objection to an interrogatory shall be stated with specificity.”4 This means that “[o]bjections to discovery must be made with specificity, and the responding party has the obligation
to explain and support its objections.”5 So Nietzsche’s emphasis on the “why” is really quite practical. Considering the contradiction between “general” objections and the requirement of “specificity” in the Federal Rules, an obvious question arises. Why even read these “GENERAL OBJECTIONS”? In striking all seven general objections made by a responding party, the Court in Weems v. Hodnett stated: “General objections such as the ones asserted by Plaintiff are meaningless and constitute a waste of time for opposing counsel and the court. In the face of such objections, it is impossible to know whether information has been withheld and, if so, why.”6 The court went on to point out that “This is particularly true in cases like this where multiple ‘general objections’ are incorporated into many of the responses with no attempt to show the application of each objection to the particular request.”7 The first impulse may be to skip them. Yet lawyers’ habit of not ignoring anything written by the opposing lawyer counsels otherwise. So most lawyers will still want to read them, despite the fact that the “prohibition against general [or blanket] objections to discovery requests has been long established.”8 This is more than a procedural rule: it is an ethical issue. The Texas Lawyer’s Creed demands that an attorney “will not resist discovery requests which are not objectionable” and “will not make objections ... for the purpose of delaying or obstructing the discovery process.”9 Furthermore the Fifth Circuit observed that “the spirit of the Federal Rules of Civil Procedure is served by adherence to similar principles of professionalism and civility.”10 Persistent Rambo Of course, the problem usually goes beyond the General Objections. Often the response to the first interrogatory is an objection. According to the objecting party, the interrogatory was overbroad and unduly burdensome and not reasonably calculated to lead to the discovery of material admissible. Furthermore, often the lawyer serving the requests will find that
the opponent has objected that all of the interrogatories are overbroad and unduly burdensome and not reasonably calculated to lead to the discovery of admissible evidence. A general list of generic objections preceding every response to every interrogatory may rise to the level of what the Fifth Circuit has described as “an all-toocommon example of the sort of Rambo tactics that have brought disrepute upon attorneys and the legal system.”11 Despite such warnings, ‘’boilerplate objections that a request for discovery is ‘overbroad and unduly burdensome and not reasonably calculated to lead to the discovery of material admissible in evidence,’ persist despite a litany of decisions from courts, including this one, that such objections are improper unless based on particularized facts.”12 This leads to one of two conclusions. Either the responding party “lacked a factual basis to make the objections,” which violates Rule 26(g), or the objections were legitimate yet “waived for failure to specify them as required.”13 Even when not repetitive, the objections “overbroad and undue burden” present obligations from the responding party who makes them. If an interrogatory is overbroad, the responding party must ”explain the extent to which it is overbroad and answer or respond to the extent that it is not—and explain the scope of what the responding party is answering or responding to.”14 For example, say the interrogatory encompasses a five-year period. If the objecting party objects to anything longer than three years, then in addition to the objection, the appropriate response will cover and preferably specify it is covering three years. If the response is objected to as an undue burden, the reality of discovery is that “the discovery process necessarily imposes burdens on a responding party... the question, however, is whether the discovery unduly burdens.”15 Responding with a mere “undue burden” without further explanation “simply reflects a problem with those objections and not with the request itself.”16
The bottom line is that an attorney is entitled to a showing from the responding party of “specifically how each interrogatory or document request is overly broad, unduly burdensome, or oppressive.”17 In other words, the responding party is obligated to craft a response, not merely completely withhold it. Vague, Ambiguous, and Common Sense Similarly, the responding lawyer often asserts that the objections are “vague and ambiguous.” A party objecting in this way has an obligation to “explain the specific and particular way in which a request is vague” or ambiguous.18 What’s more, that party is obligated to “exercise reason and common sense to attribute ordinary definitions to terms and phrases utilized in interrogatories.”19 Again, the obligation is to craft a response, not merely to withhold. This can consist of clarifying an answer by including “any reasonable definition of the term or phrase at issue.”20 Short of these precautions, a court can find that the response is “simply boilerplate objections for which there was no substantial justification.”21 The Reflexive Habit Boilerplate or not, it is common for attorneys to find several responses qualified with “subject to and without waiving.” Yet, “the practice of asserting objections and then answering ‘subject to’ and/or ‘without waiving’ the objection” may be “a reflexive habit passed on from one attorney to another without any attorney giving serious thought or reflection as to what this” means or accomplishes.22 Having no basis in the Federal Rules of Civil Procedure, this can be confusing or even misleading. It “leaves the requesting party uncertain as to whether the question has actually been fully answered or whether only a portion of the question has been answered.”23 Needless Reservation Perhaps the ultimate waste of discovery responses is reserving the “right” to supplement. This not only states the obvious; it also confuses a “right” with a “duty.” thehoustonlawyer.com
The phrase, “reserves the right to supplement,” “merely reflects an already existing duty, pursuant to Fed. R. Civ. P. 26(e).”24 Of course, supplementation must be “in a timely manner if the party learns that in some material respect the disclosure or response is incomplete.”25 Matter of Sequence Finally, another commonly used objection is that the subject matter would be “more appropriately addressed by way of deposition testimony.” Aside from the fact that for good and often economic reasons the requesting party may not intend to depose the individual who has the information sought, the Rules are quite clear. Unless, on motion, the court orders otherwise for the parties’ and witnesses’ convenience and in the interests of justice, methods of discovery may be used in any sequence.26 For example, this means that “absent a court order providing otherwise or a binding stipulation,” a party “may seek information through an interrogatory even if” the other party “believes the subject matter
would be better explored through a deposition.”27 “Everybody” Is Not a Defense Reflect on these objection abuses and many others you have encountered. Your reflex may be to accept them to the point that you do it as well. After all, experience might indicate that everybody does it. However, “... it is generally no defense to a Rule 26(g)(3) sanctions request to assert that many litigants and their counsel are similarly conducting themselves in discovery. Rather, that simply highlights the need to call this conduct out when it is presented and to provide a deterrent through a sanction, as the Federal Rules mandate here.”28 The Fifth Circuit has long held that counsel have “an obligation, as officers of the court, to assist in the discovery process by making diligent, good-faith responses to legitimate discovery requests.”29 This reflects that Federal rule 26(g) “provides a deterrent to both excessive discovery and evasion by imposing a certification requirement that obliges each attorney to
stop and think about the legitimacy of a discovery request, a response thereto, or an objection,” whether it is consistent with the Federal Rules of Civil Procedure and “grounded on a theory that is reasonable under the precedents or a good faith belief as to what should be the law.”30 Courts are “well aware of counsel’s obligations to act as an advocate for his/her client.”31 “Those obligations, however, must be tempered against counsel’s duty not to abuse legal procedure.”32 When a court finds that objections are apparently made without reasonable inquiry and without substantial justification, such a court might find that it “must impose an appropriate sanction on the signer, the party on whose behalf the signer was acting, or both.”33 Note that under these circumstances, the Rule itself mandates that the Court impose sanctions. That Rule concludes with a sentence providing flexibility to the Court in crafting sanctions. For example, in the Heller case the sanctions included ordering the defendant to pay the plaintiff’s lawyers reasonable attorney fees for dealing with defendant’s objections of vagueness, ambiguity, overbreadth, and undue burden, and that every attorney representing the defendant “in litigation in federal court receive and review a copy of the Memorandum Opinion and Order on Discovery Sanctions.”34 Conclusion: Mutual Obligation Like the tango, avoiding discovery abuse takes both parties. Rule 26(g) was enacted “to eliminate one of the most prevalent of all discovery abuses: kneejerk discovery requests served without consideration of cost or burden to the responding party.”35 That Rule “provides a deterrent to both excessive discovery and evasion by imposing a certification requirement that obliges each attorney to stop and think about the legitimacy of a discovery request, a response thereto, or an objection.”36 As much as we might like the adventurous vision of litigation as war, in the legal arena killing is not accepted. It is not even a boxing match where inflicting damage gets you points. It is a mutual obligation
Join the HBA 100 Club! The Houston Bar Association 100 Club is a special category of membership that indicates a commitment to the advancement of the legal profession and the betterment of the community. The following law firms, government agencies, law schools and corporate legal departments with five or more attorneys have become members of the 100 Club by enrolling 100 percent of their attorneys as members of the HBA. Firms of 5-24 Attorneys
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Law School Faculty
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Firms of 50-100 Attorneys
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Government Agencies City of Houston Legal Department
to provide the maximum amount of pertinent information for both sides to explore the viability of their positions, measure their strengths and weaknesses, and ultimately determine a viable settlement target or enable a third party to make a decision, be it judge or jury. Stanley P. Santire graduated from the University of Texas School of Law. Former Chief Legal Counsel for Lockheed Aircraft International and International Counsel for Lockheed Corporation, he practices law in Houston as managing member of the Santire Law firm, PLLC. Endnotes
1. Mancia v. Mayflower Textile Services Co., 253 F.R.D. 354, 358 (D .Md. 2008) 2. Id. 3. Friedrich Nietzsche, Twilight of the Idols-Maxims and Arrows, 12. 4. Fed. R. Civ. P. 33(b)(4). 5. Cartel Asset Mgmt. v. Ocwen Fin. Corp., No. 01-cv01644-REBCBS, 2010 WL 502721, at *10 (D. Colo. Feb. 8, 2010). 6. Weems v. Hodnett, No. 10-cv-1452, 2011WL 3100554, at *1 (W.D. La. July 25, 2011). 7. Id. 8. Hall v. La., Civ. A. No. 12-657-BAJ-RLB, 2014 WL 2560579, at *1(M.D. La. June 6, 2014).
9. The Texas Lawyer’s Creed III, 17. 10. McLeod, Alexander, Powel & Apf fel, P.C. v. Quarles, 894 F.2d 1482, 1487 (5th Cir. 1990). 11. McLeod 894 F.2d at 1486 12. Mancia 253 F.R.D. at 358 13. Id at 364. 14. Heller v. City of Dallas, 303 F.R.D. 466, 488 (N.D. Tex. 2014). 15. Cartel Asset Mgmt v. Ocwen Fin. Corp, at 15 16. Heller, at 489 17. McLeod, 894 F.2d at 1485. 18. Consumer Electronics 2008 WL 4327253, at *2 19. McCoo 192 F.R.D. at 694 20. Id. 21. Heller, at 492 22. Id at 486 23. Consumer Electronics at 2008 WL 4327253, at *2 24. Zapata v. IBP, Inc., Civ. A. No. 92-2366-EEO, 1995 WL 293931, at *1(D. Kan. May 10, 1995). 25. Fed R. Civ. P. 26(e)(1)(A). 26. Fed R. Civ. P 26(d)(2). 27. Heller, F.R.D. at 493. 28. Id, at 494. 29. McLeod, Alexander, Powel & Apffel, P.C. v. Quarles, 894 F.2d 1482, 1486 (5th Cir. 1990). 30. Fed. R. Civ. P. 26(g) advisory committee’s note (1983). 31. McCoo, at 625, 675, 697-98. Also see Dondi Properties Corp. v. Commerce Savings & Loan Ass’n, 121 F.R.D. 284, 288 (N.D. Tex 1988). 32. Heller, at 477, quoting McCoo v. Denny’s 192 F.R.D. 675, 697-98 (D.Kan.2000). 33. Fed. R. Civ. P. 26(g)(3). 34. Heller, at 495. 35. Id, at 477 citing Mancia v. Mayflower Textile Services Co., 253 F.R.D. 354, 358 (D.Md. 2008). This is an excellent magistrate’s opinion on discovery objections under the Federal Rules. 36. Fed R. Civ. P. 26(g) Advisory Committee’s Note (1983).
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Meet New HBA President Neil D. Kelly
The Houston Lawyer asked 2016-2017 HBA president Neil Kelly about his family, legal career and goals for the new bar year. THL: Where were you born and where did you grow up? Kelly: I was born in Lexington, Kentucky and lived there until I was five, when my family moved to San Antonio. I graduated from Winston Churchill High School in San Antonio.
Neil, Dana, Jo
sie and Colin
third grader, and Colin, age seven and a rising first grader. We have two rescue dogs—a very large Great PyreneesBorzoi male and an undetermined shepherd-like female. And the latest addition, Carmel, Josie’s hamster. My brother, Peter Kelly, is also a lawyer in Houston and my sister in law, Mary Lawler, is the executive director of THL: Tell us about your family. Avenue Community Development CorKelly: My wife, Dana Levy Kelly, is a poration; their daughters Erica, age 17, lawyer who now works as a photograand Rachel, age 14, are awesome big pher. Our children are Josie, age eight cousins to Josie and Colin. and a rising My father, Michael Kelly, was the Dean of Libraries at the University of Texas at San Antonio from its inception until he passed in 2007. My mother, Mary Kelly, is a lawyer who started at one of the oldest law firms in San Antonio, then moved to Fulbright & Jaworski and later other firms. She now lives in Houston and teaches legal writing at Thurgood Marshall School of l a Law while also continuing u n n HBA A them at the ft, Dana’s ed in jo s ie to practice law. Both of my il From le na’s fam eil’s and Da stalled as president. d brother, Rachel N f o s er b parents earned English PhDs Mem s an as in ere Neil w Neil’s niece ith Josie and Colin; Dinner, wh in and Joanne Levy; w l ei and Masters and before we N d n a a rt n parents, Ma ly and Erica Kelly; Da el moved to San Antonio, they K er elly. Kelly, Pet ther, Mary K o m l’s ei were college English teachers in LexingN and 30
on a ski trip
ton, Kentucky—my father at University of Kentucky and my mother at Transylvania University. My father in law is Martin Levy, a constitutional law professor at Thurgood Marshall School of Law since 1973; and my mother in law is Joanne Levy, who has been teaching children for over 25 years and is currently the lower school librarian at St. John’s School. THL: Where did you go to college and law school? Kelly: Tulane University in New Orleans, and then Tulane Law School. THL: How did you become interested in law as a career? Kelly: When I was a kid, I would visit my mother’s law office in the old Alamo National Bank Building in downtown San Antonio on the weekends. It took a while for me to appreciate that the thick documents she was editing really were interesting. When I was in college, I was able to work as a courier/clerk at a law firm that had a vibrant litigation and transactional practice. I gravitated toward litigation while working at the Tulane Environmental Law Clinic.
THL: What are your areas of specialty and with what firms have you worked in your legal career? Kelly: My practice is mostly complex civil litigation, with an emphasis on energy-related disputes, and a growing practice of corporate compliance, disclosure, and investigations, while also analyzing risks in energy and service transactions. I started at the Houston office of Hughes & Luce in 1992, where I was elected a partner in 2000, and then went to Andrews Kurth in 2001. I did two in-house secondments for Enron affiliates - the first for Enron Global Exploration & Production, the second for Enron North America after the bankruptcy. THL: How did you get interested in volunteering with the bar? Kelly: A friend, Elaine Howard, now at Andrews Myers, suggested I get involved with the HBA’s Litigation Section Council. I did, and in a few years was the chair. I enjoyed the opportunity to work with other lawyers and the judiciary. When I came to Andrews Kurth I had an opportunity to continue to be involved in bar activities, and I was elected to the HBA Board. THL: What do you think is the role of the organized bar in society today, and what is the role of the president? Kelly: Houston is fortunate to have an active and well respected bar that over the years has developed a breadth of outstanding programs that advance excellence and diversity in the profession, serve and educate the public on legal issues, and strive for equal access to justice. The president of the HBA manages those efforts and advances the mission of the bar by challenging and enabling the bar’s committee and section leaders and membership. THL: What areas will you focus on during your administration? Kelly: In addition to advancing the general mission and operation of the HBA, I have three primary focuses: (1) to continue and advance diversity, equality,
and inclusion in all of the HBA’s programming and activities; (2) to establish a continuing volunteer lawyerns game. enjoy a Texa e si Jo d n a staffed Colin, Neil assisted pro se clinic at space generously provided volved with Colin’s Boy Scout activities; by the Harris County Attorneys’ Office my brother and I are both Eagle Scouts and the Harris County Law Library; and and we enjoyed the community service (3) to work with Breakthrough Houston opportunities that Scouting offered. to provide lawyers as role models and mentors and to participate in lawyer THL: Is there anything else career day programming. Breakthrough you would like to bring out in this Houston is a national program whose interview that is important to you? mission is to take students who possess Kelly: In my opinion, the greatest chalhigh academic potential, but limited lenge and finest achievement of the HBA educational and economic resources, is providing equal access to justice. and prepare them for competitive high The HBA and its Houston Volunteer school programs and college admisLawyers provide the structure, but it is sions. our responsibility as lawyers to make justice happen. THL: What do you like to do outside of the practice of law? Kelly: While I wait patiently for another winning season for Tulane football, I keep up with our kids’ activities—ballet, baseball, piano, taekwondo, Legos, etc. I also try to teach our kids to learn and enjoy activities I like—cycling, swimming, soccer, and skiing. THL: Are you involved with other community organizations? Kelly: I am actively involved in the Southgate Civic Club, having served as its president for six years and still serve as a vice president. Because we are next to Rice and the Texas Medical Center, we frequently have interesting issues on which residents have diverse opinions. I was also a co-president of the Houston Neil as an Ea gle Scout, ci rca 1982. Chapter of the Tulane Alumni Association. I look forward to being inthehoustonlawyer.com
Neil D. Kelly Takes Office as HBA President
eil D. Kelly of Andrews Kurth LLP took office as the 2016-2017 president of the Houston Bar Association at the organizationâ€™s Annual Dinner Meeting on May 19 at River Oaks Country Club. He succeeded Laura Gibson of Dentons US LLP. The gala evening was dedicated to the accomplishments of the HBA and its members during the past year. Gibson presented the Presidentâ€™s Awards to outstanding committee and program chairs for 2015-2016, and the HBA honored its emeritus members who reached their 50th year of practice during the last bar year. Photos by Temple Webber
noring with a plaque ho ts Laura Gibson in 2015-2016. en es pr lly Ke D. t Neil ents as presiden her accomplishm
Neil is joined her husband, by his wife, Dana Levy Kelly, Laura Bill Ogden. Gibson, an
50-year member Glenn Wheeler Vickery and his guest, the Hon. Phil Fitzgerald
50-year member Harry L. Tindall and his wife, Marian Tindall
50-year member Michael S. Wilk and his wife, Carol Wilk
50-year member John T. Cabaniss and his wife, Betty Cabaniss
50-year member Robert Clive Stokes and his wife, Donna Faust Stokes
50-year member John D. Hughes and his wife, Sharon Hughes
50-year member Daniel V. Flatten and his wife, Connie Flatten
50-year member John R. Kirk and his wife, Margarite Kirk
50-year member D. Dudley Oldham and his wife, Judy Oldham
50-year member Frank Griffith Jones and his wife, Debbie Jones
50-year member Joseph William Royce and his wife, Jacque Royce
50-year member Larry T. Hester and his wife, Meredith Hester
50-year member Donald Kent Eckhardt and his wife, Pati Mengden Eckhardt
50-year member Kenneth Earl Lanier and his wife, Gloria Lanier
50-year member Victor A. Kormeier, Jr. and his wife, Lucy Kormeier
50-year member Lawrence J. Pirtle and his wife, Judy Pirtle
50-year member Julius Glickman and his wife, Suzan Glickman
The HBA would like to recognize the following 50 Year Members who were unable to join us for the Annual Dinner or are not pictured: William Kendall Adam Hon. Sam Alfano Joseph F. Archer Paul H. Asofsky 34
Joe Dee Barlow Roger L. Beebe Frank E. Billings Turner Williamson Branch James Perry Bryan Jr. Richard I. Colton F. Walter Conrad Jr. Hon. Eugene A. Cook Hon. Woody R. Densen Robert A. DeWitt Gary W. Dugger Dan A. Fleckman Steven Lewis Gordon William T. Gray
Henry W. Hope Hon. Lynn N. Hughes Glenn Hamilton Johnson Richard C. Johnson Raymond Lyle Kalmans Paul L. Kelly Thomas H. Kennerly John R. Kirk Jr. Larry D. Knippa Eugene Daniel Leightman J. Clark Martin J. Robert McKissick Thomas C. McMahon Marvin D. Nathan
Howard L. Nations Paul R. Nesheim Edward C. Osterberg Jr. Paul Alex Philbin Perry J. Radoff Don R. Riddle Hon. Sherman A. Ross Lee D. Schlanger John B. Scofield Sr. Glenn Edouard Seureau Bill Sherbert Robert S. Simmons John Micheal Webb Everett Barker Williams
President’s Awards Laura Gibson presented the 2015-2016 President’s Awards to outstanding committee chairs during the HBA’s Annual Meeting. Photos by Ariana Ochoa, HBA
Hon. Brock Thomas and Diana Gomez were honored as co-chairs of the Administration of Justice Committee.
Bill Ogden and Tracee Evans were honored as co-chairs of the Law & the Media Committee.
Angela Dixon was honored for outstanding work as editor in chief of The Houston Lawyer magazine.
Warren Harris, the Hon. Erin Lunceford, David Furlow and the Hon. Brett Busby were honored for outstanding work with the Teach Texas Committee.
Chris Domingo and Helene Dang were honored for outstanding work with the Lawyers for Literacy Committee.
Alice Adam and Tonya Knauth were honored as co-chairs of the Elder Law Committee.
H o u s to n L a w y e r s W h o M a d e a D i f f e r e n c e
Dillon Anderson By The Hon. Mark Davidson
or the last sixty-five years, the succession of men and women who have served as National Security Advisor to the President have performed yeoman tasks in preserving world peace and protecting the safety of our nation. Some of the better known NSC Advisors have been McGeorge Bundy (Kennedy and Johnson Administrations), Henry Kissinger (Nixon) and Condoleezza Rice (G.W. Bush). During the Cold War, through Vietnam and into the modern era of international relations, it has been the Special Assistant to the President for National Security Affairs (the formal name for the position) that has given daily advice to the President on world events and serves as a “honest broker” between warring bureaucracies, cabinet officials and military branches. A Houston lawyer and member of the Houston Bar Association was the second National Security Advisor to the President. Dillon Anderson was named by President Dwight Eisenhower from April 1, 1955 until September 1, 1956, when health concerns
required him to come back to Houston. He served during very tense times. His tenure included advising the President during the Soviet invasion of Hungary and the expansion of the Russian nuclear arsenal. He was serving when President Eisenhower suffered a heart attack and Dillon Anderson was confined to a hospital in Colorado for eight weeks. Trying to advise a bedridden President, the Cabinet and, where appropriate, the Vice-President during a time of international tension was a complicated and exhausting task, and one he did well. He helped keep the peace at a time in which peace was endangered, and during which failure could have led to atomic war. There is much, much more to his legacy than his service as NSC Advisor. He volunteered for the Army during World War II, and his work as a member of Eisenhower’s staff in charge of planning and logistics made the Allied invasion of North Africa possible.
After being reassigned to the Middle East, he kept petroleum products coming to our troops throughout the war. He was a published writer of short stories. He was an extremely skilled trial lawyer and served as Managing Partner of the firm of Baker, Botts, Andrews and Parish for five years. He was the attorney whose work led to the desegregation of Rice University. He also served as an active member of the Board of Directors of numerous businesses and charitable trusts. Anderson had an incredibly diverse set of talents and used them all. He never stopped trying to find new ways to reach new levels of accomplishment, and he succeeded at every level. His community and nation are much the better for his work as an attorney, soldier and patriot. To all of the people of the world that survived the Cold War, Dillon Anderson made a difference that will last forever.
The Hon. Mark Davidson is an MDL judge and judge (retired) of the 11th District Court. His column for The Houston Lawyer focuses on Houston attorneys who have had significant impact on the law, the legal profession and those served by the law.
Senior Lawyers Committee:
By Judy L. Ney
Legal Education and Networking
etworking, conto meet and renew old tinuing legal friendships while learneducation (CLE), ing about leading-edge and lunch: what topics in the law, in the is there not to State, and in the world. like about the benefits of The quarterly luncheons this committee? The Senior at Brennan’s are always Lawyers Committee of the well attended, a tribute Houston Bar Association to the efforts of an acwas formed in the 1997tively involved commit1998 bar year. That year, a tee and the Houston Bar survey was sent to all HBA Association staff.” members over the age of 60 More important than asking if they would be interjust food and CLE, the ested in joining a senior law- Ellen Yarrell and Trey Yates, who presented “How Science & the Supreme Court luncheons provide time yers group, and if interested, Have Changed Your World,” with 2015-2016 Senior Lawyer Committee Co-Chairs to network with fellow what kinds of activities they Norma Trusch and Kelly Frels. “senior” lawyers. Some would like to see the group participate in. attendees are interested in the material with their committee planned stellar preBased on the survey responses, the HBA presented, some lawyers want to catch up sentations which included: decided that the group would have quarwith friends while others are actively rain• “How Science & the Supreme Court terly meetings aimed at networking, and making. The combined legal knowledge Have Changed Your World,” presentgaining CLE. and Houston legal history represented at ed by Ellen Yarrell & Trey Yates; In 2011, the committee lowered the age the meetings are phenomenal. Plus, with • “The Dementia Epidemic and the limit to 50+ years. There are 4,727 HBA the new State Bar requirement of mainLaw,” presented by Molly Abshire & members in this category with active taining yearly MCLE credits for emeritus Mary McFaden; emails and each received an invitation to members (members who are 70 years of • “Senior Lawyers: Success to Signifithe luncheons. However, the meetings are age or older), these meetings provide a way cance,” presented by Jimmy Brill & open to all HBA members and everyone is to help meet the CLE requirement. Allan K. DuBois; and welcome to attend. The success of the meetings, as judged • “A Perspective of State Leadership The CLE programs are held at Brennan’s by the attendance, can be attributed to the in Austin,” presented by Harvey J. Restaurant on the edge of downtown and speakers, interesting topics, convenient loKronberg. the convenient location encourages attencation and invites sent out by the commitdance as well as the excellent traditional tee. Thank you to the HBA for including Over 100 people attended the presentasouthern/Cajun style food. The cost is the legal needs of our senior lawyers. tion on dementia, with an average of 80 $45.00 and that does not deter attendance. attendees at the remaining presentations. Where else can one get turtle soup and baJudy L. Ney is a Hearing Officer with the The committee’s success, according nanas foster at a legal luncheon? Texas Department of Insurance, Division of to Trusch, is because, “The Senior LawDuring the 2015-2016 bar year, Norma Workers’ Compensation. She is a member yers Committee has provided a forum Trusch and Kelly Frels co-chaired and of The Houston Lawyer editorial board. and a venue for more seasoned attorneys thehoustonlawyer.com
OFF THE RECORD
The Dish on Career, Fashion, Faith and Family
By Polly Fohn
The Houston Lawyer
being a working mother, encouraging women to persevere racticing law is more than a full time job. Add through the hard times and “cheer each other on.” She is blogger, author, speaker, and mother of six year collecting her stories for a new book: “Peanut Butter on old triplets to the list and you have Gindi VinYour Pants and Other Stocent, counsel for ries from Working Moms.” ExxonMobil. Gindi also counsels womWhen Gindi walks into a en in a more formal role. Her room, she brings an air of book, “Learning to Lead: warmth and energy with What Really Works for her. Her blog, “The Dish Women in Law,” is part of on Career, Fashion, Faith the curriculum for state bar and Family,” mirrors her leadership programs across personality. Since 2010, it the country. In preparation has been a haven for workfor writing the book, Gining mothers who can log di interviewed legal leadon and settle down with a ers ranging from a United cup of tea or a glass of wine States Senator to a regional to steal a quiet moment to Gindi and Bray Vincent with their triplets. CEO of Girl Scouts. Her goal themselves after putting the was to distill trends in leadership and then apply them kids to bed. Gindi started the blog as a way of chronicling to women in the legal profession. Her success is evident her children’s lives. It was a natural extension of her lifefrom her long roster of speaking engagements on leaderlong habit of keeping a personal journal. But Gindi’s blog ship, including a commencement address at the University quickly evolved into an online community. Now, several of Colorado. times a week, Gindi posts refreshingly frank new content Gindi’s speaking accolades leave no question that she on topics such as leadership, marriage, children, fashion, has grit in spades. In college, she minored in public speakand just life in general. ing, even though she threw up before every speech. Even Gindi’s blog has it all. Some posts are filled with lighttoday, she says she still feels those same nerves before hearted tips such as how to serve watermelon at a summer every speech. Yet, Gindi faithfully follows the advice she party or the best blouses to wear under a suit coat. But gives in her book. Be brave. Take risks. To find out how you can also find thoughtful posts covering more serious she juggles life and lawyering, sit down and log on to her topics, such as the difficulty of practicing law as an inblog at: http://www.gindivincent.com/ and be prepared to trovert. In that way, Gindi’s blog follows the rhythms of laugh, sigh, and be inspired. daily life. Some days and posts are light and easy, others are harder. Throughout many of her posts, you will see the three smiling faces of her triplets, dubbed the eldest, little Polly Fohn is an appellate lawyer at Haynes and Boone, LLP bit, and baby. She writes about the joys and challenges of and an associate editor for The Houston Lawyer magazine.
in pro f e s s io n ali s m
Vince Ryan Harris County Attorney
f Service to All, According to Law” is the motto of the Harris County Attorney’s Office. In Harris County, the County Attorney is the civil attorney for virtually all of the Harris County government, its other elected officials, key appointed officials such as the Auditor and the Purchasing Agent, and the employees of those units of government. As the elected head of the office, I believe professionalism is a responsibility of the utmost importance as we serve the over 25,000 officials and employees we work with on a daily basis, often including holidays and weekends. Most significantly, the people of Harris County are our ultimate clients, clients we serve by working with and through the other officials and employees of Harris County’s various entities.
One of the true benefits of being a public servant is that the compensation provided through our jobs is not tied to hourly billing. Instead, our system seeks to provide predictable salaries, raises, and benefits so our colleagues can focus on providing superior legal services which aid county government in serving the people of Harris County in a legal, efficient, and productive manner. My career has included two periods in the Office, the first under long time County Attorney Mike Driscoll. He exemplified our motto and taught me that at the end of the day, the end of a period of public service, one must be able to look in the mirror and be confident that the image staring back did the day’s business for the right reasons. “Of Service to All, According to Law”—simple words but exemplary guideposts for public service professionalism.
U.S. Supreme Court Affirms Class Certification for Tyson Foods Employees Complaining of Overtime Pay Violation By Jill Yaziji
The Houston Lawyer
n Tyson Foods, Inc. v. Bouaphakeo, 577 U.S. _____ (2016), the U. S. Supreme Court upheld class certification of Tyson Foods employees, who alleged their employer violated the Fair Labor Standards Act of 1938, (FLSA), by failing to compensate them for the overtime they spent putting on and taking off protective gear. Under the FLSA a covered employee who works more than 40 hours a week must receive compensation for excess time worked “at a rate not less than one and one-half time the regular rate at which he is employed.” All “integral and indispensable” activities must be compensated. Plaintiffs claimed that the donning and doffing of protective
gear was an integral and indispensable activity in order to guard against knife cuts while performing their job at a pork processing plan. Tyson Foods challenged class status on two grounds. Tyson argued, first, that not all class members took the same time in donning and doffing their gear and; second, that not all class members could prove they worked uncompensated overtime. The jury awarded the class approximately $2.9 million in unpaid wages. Since Tyson Foods did not keep records of the time employees spent putting on and taking off the protective gear, plaintiffs relied on statistical evidence that consisted of videotape observations and analysis of employees recorded during the donning and doffing process. Tyson strongly challenged the use of this “representative evidence” in class actions, but the Court disagreed. Citing Federal Rules of Evidence 401, 403 and 702 the Court emphasized that the permissibility of any evidence does not turn on “the form a proceeding takes—be it class or individual action—but on the degree to which the evidence is reliable in proving or disproving the elements of a relevant cause of action.” If the representative evidence could support a jury verdict for each employee proceeding alone, then it is reliable evidence in a class action. The Tyson Foods decision comes only a brief while after the passing of Justice Scalia, who in 2011 put to rest class aspirations of 1.5 million Walmart women employees alleging workplace discrimi-
nation.1 In Wal-Mart Stores, Inc. v. Dukes, putative class members alleged that the broad discretion Wal-Mart placed in its managers’ promotions decisions resulted in disparate impact against women workers. Justice Scalia pointed to the absence of a “common contention” of discrimination or a “single employment practice” or policy allegation against Wal-Mart. That absence, coupled with unreliable statistical evidence offered by plaintiffs’ expert, doomed the class. There was no “glue” to hold the massive, nationwide claims together.2 Justice Kennedy, writing for the 6-2 majority of Tyson Foods distinguished this case from the WalMart case: “While the experiences of the employees of Wal-Mart bore little relationship to one another, in this case each employee worked in the same facility, did similar work, and was paid under the same policy.” Despite this victory, Justice Kennedy noted that Tyson may challenge payments to workers who did not prove they were eligible for overtime pay. Similarly, Justice Roberts’ concurring opinion cautioned that the jury’s damages award could not stand if there is no way to ensure that only injured workers would be compensated.
Tyson Foods challenged class status on two grounds. Tyson argued, first, that not all class members took the same time in donning and doffing their gear and; second, that not all class members could prove they worked uncompensated
Jill Yaziji is the principal of Yaziji Law Firm, a civil litigation firm. She is Editor-in-Chief of The Houston Lawyer. Endnotes
1. Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011 2. See, Jill Yaziji, “The U.S. Supreme Court Holds That Employment Discrimination Claims by 1.5 Million Women Cannot Proceed As One Class, The Houston Lawyer, September-October 2011.
Texas Supreme Court Protects Property Owner’s Right to Family Pet By Kimberly A. Chojnacki
n Lydia Lira and Alfonso Lira v. Greater Houston German Shepherd Dog Rescue, Inc., No. 14-0964, slip op. (Tex. 2016), the Supreme Court addressed the extent of a pet owner’s property rights to the family dog. The Liras owned a seven-year old German Shepherd, Monte. Monte escaped from the yard on January 1, 2013; the Liras could not locate him, whether through neighborhood signs or local area classified websites. BARC, an animal shelter and adoption facility run by the City of Houston, picked up Monte on January 2. On January 7, two days before his scheduled euthanizing, BARC contacted the Greater Houston German Shepherd Dog Rescue (GHGSDR), who agreed to accept Monte as a foster dog. On January 9, the Liras learned that Monte was at BARC, which
in turn told the Liras that Monte had been transferred to GHGSDR. Monte’s GHGSDR foster refused to return Monte to the Liras, despite offers to reimburse GHGSDR for all expenses. The Liras subsequently filed suit against GHGSDR for conversion and other claims, seeking a declaratory injunction as to ownership and an injunction ordering his return. The trial court rendered judgment in the Liras’ favor and entered a permanent injunction ordering Monte’s return to the Liras. The court of appeals reversed, concluding the Liras had lost their property right to Monte. The Liras filed a petition for review asking that the trial court’s judgment be reinstated. Guiding the Court’s analysis were legal principles underlying the notion that family pets are personal property. First, the Court noted that “the law abhors a forfeiture of property. Private property rights are ‘a foundational liberty, not a contingent privilege.’” Second, the Court recalled its recent ruling in Strickland v. Medlen in which it held that pet dogs are “property in the eyes of the law,” but a “special form of personal property.”1 With these principles, the Court construed Section 826.033 of the Texas Health and Safety Code and provisions of the City of Houston Code of Ordinances to determine whether the provisions evidenced sufficient legislative intent to divest the Liras of their rights to Monte, a “special form of personal property.” The Court noted that the City of Houston Ordinances suggested different statuses for an animal in its custody:
impounded (meaning held until claimed or redeemed by the owner); sold (as in to a subsequent owner after the period of impoundment expires); surrendered to a non-profit group; or euthanized. With respect to impoundment, the Court concluded that such status “does not suggest a transfer of ownership or the loss of the owner’s right to the return of his property.” Even in the case of a dog being sold, the Court concluded the original owner is not automatically divested of its rights to the dog until the expiration of a thirty-day redemption period. The Court stressed that “putting down a dog is arguably so inconsistent with the rights of the original owner as to imply a divestment of property rights.” But surrendering the animal to another group, on the other hand, is not so extreme a measure and is not so inconsistent with the original owner’s property rights as to constitute a divestment thereof. Based on this analysis, the Court concluded that BARC’s surrender of Monte to GHGSDR did not imply a divestment of the Liras’ property rights to Monte. The Court reversed the judgment of the court of appeals and rendered judgment reinstating the trial court’s judgment.
“the law abhors a forfeiture
Private property rights are
‘a foundational liberty, not a contingent
Kimberly A. Chojnacki is an associate of Dow Golub Remels & Beverly, LLP and practices commercial litigation. She is a member of The Houston Lawyer editorial board. Endnotes
1. 397 S.W.3d 184, 192 (Tex. 2013).
Protagoras By Daniel Silvermintz Ancients in Action Series Bloomsbury Academic, 2015 Reviewed by Jonathan C.C. Day
The Houston Lawyer
rotagoras was a Greek philosopher born in Thrace. He lived in the fifth century B.C., and was a senior contemporary of Socrates and Plato. He is known only from the writings of Plato, Aristotle, and later historians, all of whom seem wary of his sophistry and moral relativism. The story of this ancient teacher of seditious truths, who became extremely rich from the fees he charged his wealthy students, is told in a readable 75-page book by a local Houston philosopher named Daniel Silvermintz, who teaches at the University of Houston-Clear Lake. Professor Silvermintz begins with democracy. There have been times and places when the concept of democracy was seditious; for example, 1776 in British colonial America. Long before then, the idea of one man one vote was born in Athens even though many then believed that the gods ordained the law and their chosen rulers enforced it. The known history of the world establishes Protagoras and his teacher Democritus, who saved Protagoras from a life of manual labor in the provinces, as democracy’s first advocates. Protagoras was known as a “sophist.” Beyond its association with fees, sophistry is often perceived as seditious for its flexible relationship with the truth. Perhaps most lasting and controversially, Protagoras argued for moral relativism. He believed that morality could be taught. He cited the extensive
moral education of people from the time they were children. First, their parents taught them, then their teachers, coaches, neighbors, trainers, masters, and eventually the city’s lawmakers. Having established that he believed morality could be taught, Protagoras took a step back and compared morality to playing the flute. In his parable, all people are taught to play the flute, and setting aside the humor in imagining such a world, Protagoras said some would never learn, and some would excel, but all citizens would be judged on how they played the flute. As an inspirational example of a virtuoso in this sense, Protagoras spoke of his student, Pericles, a moral man who elevated democratic principles. Protagoras most admired him in 429 BC when Pericles lost his two sons to the plague and remained head of state. Later that same year the plague took Pericles. In that environment, Protagoras may have felt it was worth taking a risk. He understood that if morality could be taught some may take that to mean morality was not natural or innate. And that might raise questions people may not want to ask. Professor Silvermintz shares with us the details of how Protagoras navigated this issue. It is not clear what Protagoras taught his students. It may be different than what he shared second hand with us. But the ancients report that Protagoras said this about morality: Any parent can attest to the fact that children have a natural disposition to act selfishly. While the child needs no instruction to learn how to pursue its own interest, endless effort is extended to inculcate the child with a concern for others…The educational system merely reinforces that there
are rewards and punishments for one’s actions when perceived by others. The only reason to act ethically is to reap the rewards and avoid the punishments. That said, the ethical action remains a violation of human nature in which the individual knows that he can often derive much greater rewards from acting unjustly if his misdeeds go undetected. Professor Silvermintz is careful to acknowledge that these are only fragments retold and interpreted by someone other than Protagoras. Nevertheless, the story of Protagoras is worth telling and reading. Jonathan C.C. Day worked at Vinson & Elkins LLP and Dobrowski LLP before starting Day PLLC in 2007. Day PLLC focuses on litigation, counseling, and community development. He is a member of The Houston Lawyer editorial board.
Amicus Curiae By Brian Clary iUniverse, 2016 Reviewed by Polly Fohn
everal teenage girls go missing in a small Texas town. A suspect is arrested and convicted for capital murder. But the whereabouts of most of the girls remain unknown. In Amicus Curiae, author Brian Clary, a native Houstonian and board-certified trial lawyer, crafts a thrilling legal drama that will keep you turning the pages long past midnight. The story is told primarily from the perspective of a devas-
tated but determined mother, Michelle “Mickey” Grant. Even after the abductions stop and an offender is sentenced to death, Mickey feels driven to discover the truth, however grim, behind her daughter’s mysterious disappearance. Mickey is a brilliant trial associate at a prestigious law firm and she chooses a gutsy and dangerous path to finding justice for her daughter. Her choice turns her not only into a “friend of the court” but also, in the eyes of the town, into the ally of a convicted murderer, Willie Lee Flynn. When she visits Flynn on death row, a prison guard observes— “Oh, I got it,” [a guard] interrupted... “You’re a seeker.”
“A what?” “A seeker. You need to make the unthinkable make sense, right?” [the guard] asked, and Mickey stared down at the table. “Listen, ma’am. I’m very sorry about your loss, and he’s agreed to see you, so you have every right to be here. But it’s your type that concerns me most. The yellers just want to confront and vent anger, but seekers want the impossible.” Clary’s tale will take you from the living room of grieving parents, through the media circus of a high profile murder trial, to the isolation cells of death row, the quiet halls of the appellate court, and a high speed car chase on a collision course with an oncoming train. He tells
his story chiefly though conversation between an array of unique characters, including a prickly police captain, a wise legal mentor, and a defense attorney with the nickname “Cannibal Campbell.” Although Clary’s writing seems effortless, he is humble about his talents: “Like golf, writing is not something that you master, it’s something that you cope with and pray for incremental improvement... I am humbled when anyone takes the time to read something I have written and, outside the birth of my children, I have had no greater feeling of joy, than learning that someone did read me and enjoyed it.” Amicus Curiae meets and exceeds Clary’s modest goal. More than one plot twist will keep you in suspense until you turn the final page. Polly Fohn is an appellate attorney at Haynes and Boone, L.L.P. and an associate editor of The Houston Lawyer magazine.
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67th Harvest Celebration Benefiting the Houston Bar Foundation November 14, 2016 7-10 p.m.
River Oaks Country Club 1600 River Oaks Blvd.
Join your colleagues in supporting the legal profession’s spirit of giving. Sow seeds of hope through underwriting the 67th Annual Harvest Celebration, where 100% of net proceeds directly benefit pro bono legal services in our community. Your contribution supports the HBA’s Houston Volunteer Lawyers, providing programs that change the lives of low-income Houstonians.
Underwriting Levels & Benefits
• Diamond - $30,000 20 tickets to the event; inclusion in full page ad in the Houston Chronicle; recognition in HBA publications; recognition on signage at the event. • Platinum - $20,000 16 tickets to the event; inclusion in full page ad in the Houston Chronicle; recognition in HBA publications; recognition on signage at the event. • Gold - $10,000 10 tickets to the event; inclusion in full page ad in the Houston Chronicle, recognition in HBA publications; recognition on signage at the event. • Silver - $5,000 6 tickets to the event; inclusion in full page ad in the Houston Chronicle; recognition in HBA publications; recognition on signage at the event. • Bronze - $2,500 4 tickets to the event; recognition in HBA publications; recognition on signage at the event. • Crystal - $1,000 2 tickets to the event; recognition in HBA publications; recognition on signage at the event. • Individual Tickets $200 (Underwriters at $5,000 and above may purchase additional tickets at $125 each.) For more information on underwriting or to purchase tickets, visit www.hba.org or call 713-759-1133.
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