You’ve no doubt noticed the new word-count limits applicable in Texas appellate courts.

At his blog, Todd Smith has collected some examples from practitioners about how to phrase the word-count certificate of compliance.

The comment I left suggested that your certificate specify the word processor that you used to generate the document (and thus the count). That may seem a minor point. This post explains my thinking — and may make you reconsider your word-processor allegiances.

Word processors disagree about the math

Although your favorite word processor will give you a “word count,” do you know what it is counting?

For example:

• Phrasal adjectives: Is “summary-judgment motion” two words or three?

• Legal citations: Is “S.W.3d” one word or two?

• Numerals: Does a pinpoint cite to a span of pages (e.g., “123-25″) count as one word or two?

• Record citations: Is a record citation like “4.RR.124-25″ one word or two or three or four?

• Statutory citations: How many words is a cite to “§123.23(A)(1)(i)(a)”? Is it just one long word, or is it five very short words?

I was curious. So, I ran an experiment. I lifted roughly a page and a half from a recent appellate brief. I put this text into its own clean word-processing file and made a few tweaks to the typography.

Survey says…

Here are the word counts from four word processors I had at my fingertips:

What led to the huge gap between the lowest count (Word) and the highest count (Pages)? It turns out that Pages uses an algorithm that treats an abbreviation like “4.RR.125-26″ as being four words. Yes, four. Pages sees imaginary word breaks in places that I do not.

This is a shame, because Pages is a very pleasant word processor to use. But so long as it counts words so greedily, it will be relegated to short motions and letters.¹

The title match: Word vs. WordPerfect

What about the difference between WordPerfect and Word?

It turns out that WordPerfect counts a record citation like “CR.25″ as two separate words.²

Word and WordPerfect also treat dashes differently. In WordPerfect, two words joined together by any flavor of dash (a hyphen, en dash, or em dash) are treated as one long word. The same goes for spans of numbers; joining them with an en dash to indulge your typographic precision does not cost you an extra word. But Microsoft Word is less forgiving. If you use an en dash rather than a hyphen, that subtle choice increases the word count.³

But all WordPerfect’s sophistication is lost for deeply nested statutory cites. WordPerfect (much like Pages) thinks that “§123.23(A)(1)(a)(i)” is five words. Microsoft Word? It counts that statutory cite as a single word.

The winner

The clear choice for verbose people is Microsoft Word. If you are using WordPerfect, you now have one more thing to boast about: Your briefs will, by necessity, be a little less wordy.

1. Perhaps the programmer was trying aid struggling freelancers “paid by the word”? It’s puzzling. [↩]
2. Oddly, WordPerfect counts “S.W.3d” as just one word and “4.RR.125-26″ as (just) two words. So the over counting of record cites is less pronounced in WordPerfect than in Pages. [↩]
3. This paragraph was rewritten after Leif’s comment on this post. [↩]

The Texas Supreme Court did not issue any opinions with this week’s orders or choose any new cases for oral argument.

Monday afternoon will bring the investiture of the two most recent additions to the Court, Justice Jeffrey Boyd and Justice John Devine. At the same ceremony, the two Justices reelected in the fall (Justices Hecht and Willett) will take the oath of office for their current terms.

On Tuesday, the Court will hold its only private conference for January. The Court’s next argument sitting will begin on February 5, 2013.

The year ended quietly at the Texas Supreme Court. The first orders list of 2013 included no opinions or grants.

The turning of the calendar also marked the end of Justice Medina’s service on the Court. His final signed opinion was in THE STATE OF TEXAS AND THE TEXAS DEPARTMENT OF TRANSPORTATION v. NICO-WF1, L.L.C., No. 11-0312 on November 2, 2012.

Meanwhile, Justice Boyd (who had succeeded Justice Wainwright earlier in the month) hit the ground running. Each of the Court’s three signed majorities from December was joined by Justice Boyd.

The Court will be holding oral arguments this week in Austin, and next week will bring the formal investiture of new Justices (on Monday) and the Court’s first private conference of the year (on Tuesday).

The Court’s final orders list of 2012 was issued on December 21, 2012. The Court issued opinions in three cases. It did not select any new cases for oral argument.

Opinions

Contract interpretation

EL PASO FIELD SERVICES, L.P. AND GULFTERRA SOUTH TEXAS, L.P. F/K/A EL PASO SOUTH TEXAS, L.P. v. MASTEC NORTH AMERICA, INC. AND MASTEC, INC., No. 10-0648

Motion for rehearing filed on January 7, 2013

Opinion of the Court

Dissenting

The Court was asked to interpret a pipeline-construction contract to determine whether one party had failed to disclose the existence of “foreign crossings” of the pipeline path (which would raise the construction costs) or whether the other party was responsible for doing its own due diligence.

Justice Green wrote for a six-Justice majority, holding that the contract plain language allocated all the risk to MasTec. The Court rejected the argument that other language in the contract about due diligence modified this provision. The Court also rejected the argument that El Paso’s disclosure of only about 35% of these “foreign crossings” fell below an industry standard of 85-90% as being irrelevant to construing this contract.

Justice Guzman wrote a dissent arguing that the Court’s approach ignored the rule that specific provisions control over general provisions.

Interlocutory appeals from pleas to the jurisdiction

THE CITY OF HOUSTON v. THE ESTATE OF KENNETH SAMUEL JONES, DECEASED, No. 10-0755

Per Curiam

The Court held that a second plea to the jurisdiction filed by a governmental entity was merely a rehash of its earlier (denied) plea, and thus it did not restart the statutory 20-day clock for filing an interlocutory appeal.

Jurisdiction over child custody orders

IN RE CARRIE DEAN, No. 11-0891

Opinion of the Court

Concurring

The Court held that Texas courts did not have “home state” jurisdiction over child custody for “a child who was born in New Mexico and has lived there all his life.”

This case arose in an unusual posture. A New Mexico trial court had already “ceded jurisdiction to Texas” — an order that is still being tested on appeal in New Mexico.¹ Because the Texas Supreme Court has now held that Texas courts do not have “home state” jurisdiction, the case is in limbo.

Accordingly, the opinion orders the Texas trial court “to confer immediately with the New Mexico Court of Appeals, where the case is currently pending.” If the New Mexico court determines that Texas is the appropriate forum, then the custody questions can move forward. Otherwise, the custody issue should be dismissed.

1. Footnotes 7 and 8 (on page 5 of the slip opinion) discuss these New Mexico procedures. On appeal, the New Mexico intermediate appellate court has issued “proposed summary dispositions,” which would have concluded that the child’s home state was New Mexico. One of the parties objected, and the Court decided to schedule the case for its general calendar for later disposition. [↩]

With this week’s orders, the Texas Supreme Court issued one opinion and granted review in five cases for oral argument.

The Court also denied the motion for rehearing in IN RE NESTLE USA, INC., No. 12-0518 , bringing that challenge to the franchise tax to a close.

Property owners are competent to testify to value, but their testimony cannot be mere conclusion

NATURAL GAS PIPELINE COMPANY OF AMERICA v. WILLIAM JUSTISS, DARLENE JUSTISS, JOSEPH JUSTISS, TOMMY ASLPAUGH, JUDY ALSPAUGH, JOE DENTON MASHBURN, CHRISTINE MASHBURN, JOE DONALD MASHBURN, AND JUDY MASHBURN, No. 10-0451

Opinion of the Court

This appeal involved a nuisance claim for odors emanating from a gas compressor station.

The key holding is that the Property Owner Rule does not permit conclusory evidence of market value:

Because property owner testimony is the functional equivalent of expert testimony, it must be judged by the same standards. Thus, as with expert testimony, property valuations may not be based solely on a property owner’s ipse dixit. An owner may not simply echo the phrase “market value” and state a number to substantiate his diminished value claim; he must provide the factual basis on which his opinion rests.

The Court noted that a property owner has many resources today to draw upon:

Evidence of price paid, nearby sales, tax valuations, appraisals, online resources, and any other relevant factors may be offered to support the claim. But the valuation must be substantiated; a naked assertion of “market value” is not enough.

New Grants

• MONCRIEF OIL INTERNATIONAL, INC. v. OAO GAZPROM, GAZPROM EXPORT, LLC AND GAZPROM MARKETING & TRADING, LTD., No. 11-0195 : Whether Texas courts have personal jurisdiction over Gazprom for alleged tortious interference with an existing joint venture.

• HOMER MERRIMAN v. XTO ENERGY, INC., No. 11-0494 : What does the surface owner of property need to establish in order to invoke the “accommodation doctrine” to prevent the mineral rights holder from drilling in a certain location?

• EL PASO COUNTY HOSPITAL DISTRICT D/B/A R.E. THOMASON GENERAL HOSPITAL, ET AL. v. TEXAS HEALTH AND HUMAN SERVICES COMMISSION AND THOMAS SUEHS, EXECUTIVE COMMISSIONER, No. 11-0830 : The Court is being asked to interpret and enforce the mandate from its previous decision in this case about reimbursement rates.

  The previous decision was EL PASO HOSPITAL DISTRICT D/B/A R.E. THOMASON GENERAL HOSPITAL DISTRICT, ET AL. v. TEXAS HEALTH AND HUMAN SERVICES COMMISSION AND DON GILBERT, COMMISSIONER, No. 05-0372 .

• BENNY P. PHILLIPS, M.D. v. DALE BRAMLETT, INDIVIDUALLY AND AS INDEPENDENT ADMINISTRATOR OF THE ESTATE OF VICKI BRAMLETT, DECEASED..., No. 12-0257 : This appeal also involves issues growing out of the mandate in a previous case.

  The previous appeal was BENNY P. PHILLIPS, M.D. v. DALE BRAMLETT, INDIVIDUALLY AND AS INDEPENDENT ADMINISTRATOR OF THE ESTATE OF VICKI BRAMLETT, DECEASED..., No. 07-0522 .

• IN RE JOHN W. COOK; MARC COOK; MARC BUMBERA; SUN DEVELOPMENT, L.L.P.; SD GP, L.L.C.; PETROLEUM WHOLESALE..., No. 12-0308 : The Civil Practice and Remedies Code has a mandatory venue provision for injunctive relief in the defendant’s domicile. The DTPA has a provision making venue in Travis County permissive. Which venue provision controls when the Attorney General seeks primarily injunctive relief against a defendant?

Scott Henson of Grits for Breakfast published a history-centered post on Saturday that covers some interesting stories from the Texas Supreme Court’s past. If you’re a fan of history, or of habeas writs, you should check it out.

You will find:

• An account given by former Justice A.W. Terrell of a dramatic showdown during the Civil War between Chief Justice Moore and a confederate general who refused to acknowledge a writ of habeas corpus issued to save some accused union sympathizers from military punishment.

• The five Justices of the Texas Supreme Court (including Moore) who were removed from office by the U.S. military during reconstruction, and what became of them.

• “The Semicolon Court”: the derisive name given to the Reconstruction-era justices who wrote Ex part Rodriguez, an 1874 decision holding invalid the 1873 gubernatorial election that the Democratic candidate (former Justice Coke) had appeared to win 2-1 over the Republican incumbent. The Rodriguez appeal arose from a prosecution for voter fraud — Rodriguez was charged with voting twice in that election. His defense? That the whole election had been unconstitutional. Rodriguez won his defense, but the Governor ignored the ruling.

Source: “Habeas writs that helped define Reconstruction-era Texas” (Grits for Breakfast)

The Court did not issue any opinions or grant review in any cases with today’s orders list.

The Court did post a photo of Justice Jeff Boyd being sworn in on Monday. It also posted an updated version of the Court’s group photo.

One thing Justice Boyd won’t be doing his first weekend on the bench is using the court web or email systems, both of which will be down on Saturday for planned electrical maintenance (according to an announcement on the front page of the Court’s site).

With today’s orders, the Texas Supreme Court issued an opinion in one pending case and set an argument date for a certified question case.

Argument date in certified insurance question

In August, the Court accepted the Fifth Circuit’s invitation to resolve a disputed question of Texas insurance law in EWING CONSTRUCTION COMPANY, INCORPORATED v. AMERISURE INSURANCE COMPANY, No. 12-0661 . (You can read more about the case in this earlier post.)

Now that the parties have completed briefing the case, the Court has set the case for oral argument on February 5, 2013.

The Court sides with the patient in a claim over a chiropractor’s failure to obtain informed consent

AARON FELTON v. BROCK LOVETT, D.C., No. 11-0252

Opinion of the Court

This is an unusual doctor-patient lawsuit because it falls through some of the gaps in the Texas medical-malpractice statute.

The doctor here was a chiropractor, and the patient suffered a stroke during “manipulation” of the spine. As the Court relates, the doctor “was well aware of the risk of stroke from chiropractic neck manipulation. Just that morning, he had been reading an article on the subject.”

At trial, the jury found in favor of the doctor that the actual manipulation of the spine had not been done negligently but in favor of the patient on an “informed consent” theory that the doctor had failed to disclose a risk that would otherwise have dissuaded the patient from undergoing the procedure. The judgment was for roughly $742,000.

The court of appeals reversed, applying Section 74.101 of the Texas medical-liability act governing informed consent.

The Texas Supreme Court took a detour that is interesting but does not change the result, holding that the statutory provision actually does not apply to this case. That is because a chiropractor, although a “health care provider” for some parts of the statute, “is not a physician and ‘medical care’” (the term used in this section) “can only be provided by physicians.” Because that statute did not apply, the Court fell back to Texas common law principles of informed consent. In the end, however, it concluded that the duty rule was the same: “[i]n this case, certainly, and probably all cases, the common-law and statutory duties are congruent.”

The duty question asks if the risk here (a stroke) was inherent in the procedure such that it should have been disclosed. The court of appeals held that it was not, reasoning that the injury would not have happened but for the patient’s own physical condition (an unhealthy artery).

The Supreme Court took a different view of the evidence:

this ignores the evidence that Felton’s injury also would not have occurred but for Lovett’s treatment, that chiropractic neck manipulation can result in vertebral artery dissection and does so in a significant number of cases, and that dissection and stroke are known risks of chiropractic treatment that should be disclosed. Felton’s injury occurred during treatment, as a direct result of treatment. The same kind of injury may occur in other patients undergoing the same kind of treatment. The risk that a patient will not respond well to treatment is clearly one that inheres in the treatment.

Concluding that there was a duty for the chiropractor to have informed the patient of this risk, the Supreme Court reversed the court of appeals and remanded to that court to consider some other appellate issues that it had previously left unresolved.

Last fall, I mentioned in passing the Legislature’s new requirement that the Court compile and submit a report about how each Justice has met the Court’s internal operating deadlines.

The Court has released the 2012 version of this report.¹

It includes the usual information, such as that only seven argued cases were carried over in August to the new fiscal year that started in September (the same count I reached here),² as well as a breakdown of how many opinions each Justice wrote:

As with the OCA reports, this reveals the count of per curiam opinions authored by each Justice. Last year, there was only one outlier. The Chief Justice wrote 9 per curiams, with the other Justices all writing between 3 and 5 per curiam opinions.

The new glimpse into the Court — the one demanded by the Legislature — is the “Number of Missed Internal Benchmarks” chart, broken down by Justice:

For 2012, five of the Justices had a perfect score on the internal benchmarks. The outlier was Justice Hecht, who was recorded as missing seven of them.³

For context, the report emphasizes that “the missed benchmarks did not hinder the Court’s or any Justice’s output in fiscal 2012. Of the thirteen benchmarks missed, only two items remained outstanding at the end of the fiscal year.” (page 3)

The Court and the Legislature

It is hard to read the report without thinking about the larger questions of the Court’s relationship to the Legislature. In the past, the Legislature has shown interest in why the Court’s decisions can take time, culminating in this more detailed reporting requirement.

And since the last legislative session, the Court has tangled with several direct actions brought under a special statutory provision requiring a decision within 120 days. In the first of those, IN RE ALLCAT CLAIMS SERVICE, L.P. AND JOHN WEAKLY, No. 11-0589 , Justice Willett’s separate opinion (joined by Justice Lehrmann) raised separation of powers concerns about that time limit and about legislative intrusions into the internal processes of the Court.

The language here is not so direct, but it does offer pragmatic reasons why particular deadlines might be missed in pursuit of “thorough and accurate declarations of law.” (page 2) The Chief Justice’s concluding paragraph promises that, “[i]n the coming year the Court will continue to handle cases efficiently, but not prematurely.” (page 4)

1. I do not recall seeing a public release of the 2011 version, which would likely have been due the same day that I wrote that blog post mentioning it. [↩]
2. As of today, all seven of those remain pending. They are the cases that (today) are highlighted on my list of outstanding argued Texas Supreme Court cases. You can click on the “Date Argued” heading to resort that list. [↩]
3. For fiscal 2011, only two Justices met all the benchmarks. [↩]

Today, Governor Perry appointed Jeffrey S. Boyd to fill the vacancy on the Texas Supreme Court created when Dale Wainwright stepped down from the bench. Boyd will take the bench on December 3, 2012.

With this appointment, the Court now has a full complement of Justices. The Texas Senate will have a chance to confirm the appointment when it next convenes. This term will then run through the end of 2014 (when the next statewide general election is held).

Before this appointment, Boyd had most recently served as Perry’s chief of staff, and before that, his general counsel. His career before that included stops in the private bar (at Thompson & Knight) and senior positions in the Texas Attorney General’s Office.

Coverage:

• Texas Tribune

• Texas Lawyer

• Statesman

With this week’s orders, the Texas Supreme Court issued two per curiam opinions and granted two new cases for argument next spring.

New Grants

• ROSSCER CRAIG TUCKER, II v. LIZABETH THOMAS, No. 12-0183 – Whether attorney’s fees accrued in a suit to modify an award of child support (as opposed to a suit to enforce unpaid child support) can be folded into that child-support award.

• CHCA WOMAN’S HOSPITAL, L.P. D/B/A THE WOMAN’S HOSPITAL OF TEXAS AND WOMAN’S HOSPITAL OF TEXAS, INC. v. SCOTT LIDJI AND ANGELA LIDJI, AS NEXT FRIENDS OF R.L., A MINOR, No. 12-0357 – Whether the expert-report requirement of everybody’s favorite example of legislative clarity (the 2003 health-care-reform law) is tolled by the plaintiff filing a non-suit. Here, the plaintiff filed a non-suit before the expert-report deadline and then after more investigation filed a new lawsuit, in which an expert report was filed. The defendant argues that the second suit should still be governed by the expert-report deadline set in the first (now non-suited) suit.

Per Curiam Opinions

SEVERIANO DELEON v. ROYAL INDEMNITY COMPANY, No. 10-0319

Per Curiam

The court of appeals in this case held that the Workers Compensation Act did not allow it to return this case to the Division, once it had concluded the worker’s claim had been mishandled.

In light of its recent contrary decision in AMERICAN ZURICH INSURANCE COMPANY v. DANIEL SAMUDIO, No. 10-0554 , which allowed such remands, the Texas Supreme Court reverses and sends the matter back to the Workers Compensation Division.

TEXAS DEPARTMENT OF TRANSPORTATION v. JOSE LUIS PERCHES, SR. AND ALMA DELIA PERCHES, INDIVIDUALLY AND ON BEHALF OF THE ESTATE OF JOSE LUIS PERCHES, JR., DECEASED, No. 11-0437

Per Curiam

This case involved the provision of the Texas Tort Claims Act that makes the state potentially liable for “special defects” on state property, which (in the Court’s words) “pose a threat to ordinary users of the roadway,” but not injuries arising from more mundane or less likely defects.

Here, the defect was a concrete guardrail, which the court of appeals concluded made the intersection so narrow that a left turn was no longer safe.

The Texas Supreme Court disagreed that “an ordinary user” would have any problem: “An ordinary user of the roadway would not be expected to miss a turn and crash through a concrete guardrail.”

With that in mind, the Court reasoned its way to a fairly robust rule against future suits involving guardrails on Texas roads:

Guardrails, by their nature, define the roadway, they do not impede it. We therefore hold that guardrails placed in accordance to plan cannot constitute a special defect under the Act.

The Texas Supreme Court did not issue any opinions with this week’s orders list.

The Court calendar shows a private conference scheduled for next Monday and Tuesday.