With today’s order list, the Texas Supreme Court issued merits opinions in four pending appeals.

The Court did not add any additional cases to its argument calendar for the fall. It looks unlikely that the Court will do that before its next scheduled conference in August.

The Texas Commission on Human Rights Act (CHRA) Versus the Whistleblower Act

Lopez, a former employee of the City of Waco, brought a Whistleblower Act claim alleging that he had been retaliated against for reporting a violation of a discrimination policy. The City argued that Lopez should instead have brought suit under the Texas Commission on Human Rights Act (the CHRA) and that, having failed to do so, his claim was barred.

In deciding how to reconcile these two statutes, the Texas Supreme Court focused on the policies served by the two acts, concluding that the best way to give effect of the Legislature’s intent was to treat the CHRA as the more “specific” statute that would control over a contrary “general” statute. The Court concluded that any other result would “render … utterly meaningless” some of the “details provisions” of the CHRA crafted by the Legislature:

If a public employee had the option to pursue a retaliation claim under either the Whistleblower Act or the CHRA, pursuit of the former would render the limitations in the CHRA utterly meaningless as applied to public employees. Such breadth must not be permitted to defeat the CHRA’s comprehensive statutory scheme. We do not believe the Legislature intended such a result, given the CHRA’s detailed provisions and the efforts undertaken by its drafters to address various forms of discrimination and to make that statute conform with parallel federal employment discrimination laws.

The Court rejected the argument that the Whistleblower Act should control because it was the later enacted of the two, concluding that “there is no indication that the Legislature intended to allow the Act’s general procedures and remedies to supplant the particularized procedures and remedies provided in the CHRA.”

Because Lopez’s complaints concerned conduct that fell squarely within the CHRA and because Lopez acknowledged that he had not timely followed the CHRA’s procedures, the Texas Supreme Court concluded that any amendment of his pleadings would be futile. The Court thus dismissed Lopez’s action for failure to plead a claim that fits within a waiver of immunity.

Attorney Fees and the Parol Evidence Rule

This was a dispute over appellate attorneys fees. Haden and his company hired David J. Sacks, P.C. to represent them in a Fifth Circuit appeal. The written agreement showed an agreed-upon rate of $200 per hour (reduced from $300) and an initial retainer of $5000 (reduced from $10,000).

The firm ultimately invoiced Haden for a total of $40,304.71 covering both an appellant’s brief and a reply brief. One of the invoices explained, “‘given the state of the record as we were eventually able to retrieve from the Court, putting together winning arguments took considerabl[y] more time than I anticipated after giving the cursory review of the initial documents.’ The letter also said, ‘We are committed to excellence and will generally spend whatever time is necessary to develop a winning brief given the state of the record. Sometimes that gets a little more expensive than anticipated.'”

Haden refused to pay more than an additional $5000, “maintaining that [he] had ‘made it clear’ that $5,000 was all he could afford to spend. Sacks disputed Haden’s assertions and filed this lawsuit.”

The district court granted summary judgment to the law firm. The court of appeals reversed, holding that there was a fact question as to whether there was a meeting of the minds about this fee agreement at all.

The Texas Supreme Court held that the written fee agreement could not be contravened by an assertion that an oral cap on fees had been set: “We have never held that an open-ended hourly fee agreement will be enforced only if it expressly states there is no cap on fees, and we decline to do so now. If a contract is unambiguous, the parol evidence rule precludes consideration of evidence of prior or contemporaneous agreements unless an exception to the parol evidence rule applies.”

The Court therefore reversed and rendered judgment in the law firm’s favor. In a related appeal, the Court also sent back to the court of appeals the question of whether the law firm’s post-judgment enforcement actions were proper.

I’m sure that other bloggers will have more to say about the relative merits of fixed versus hourly versus contingent fees.

Default Judgments After an Answer Is Struck

The first sentence of the facts: “Sells is an eighty-two year old woman who has suffered four strokes in the last five years.” She owned several parcels of land, and a dispute arose over whether she had given full power of attorney to another landowner to actually sell her land or merely to list it.

Her daughter appeared on her behalf with an answer to the suit, but (it turns out) her daughter was not an attorney. The trial judge “halted the proceedings to warn Tates that forging documents and practicing law without a license were both crimes and to inform Tates of her Fifth Amendment privileges. The trial judge then swore her in as a witness and allowed Drott’s attorneys to question her.” The trial judge then struck the answer.

Because no answer for Sells was on file, and because only her daughter had appeared, the trial court rendered a default judgment against her. The Texas Supreme Court reversed, holding that because the answer was facially sufficient to avoid default, Sells had made an appearance in the case and thus was entitled to notice before further proceedings, such as taking evidence on disputed questions of fact over whether that answer should be struck.

Assuming that Drott produced evidence that Sells had filed defective answers, in that they were signed on her behalf by her ‘next friend’ daughter, Sells was entitled to an opportunity to prove that such defects were not true or not fatal or to argue that she had a right to cure the defects, if possible. The trial court erred in granting a default judgment against her without the requisite notice.