: The Blawgraphy
Life of a Law Student, University of Houston Law Center

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MBM Financial Corp. v. Woodlands Operating Co., L.P.


In MBM Financial Corporation v. The Woodlands Operating Co., No. 08-0390 (Tex. Aug. 28, 2009) the Texas Supreme Court reversed a plaintiff’s judgment for $1,000 in damages and almost $150,000 in attorney’s fees. Video of Oral Argument is available from St. Mary’s Law School. (Oral Argument Transcript) Justice Brister’s opinion begins:

Since Jarndyce v. Jarndyce, there have been charges that some cases benefit the lawyers more than the clients. But suits cannot be maintained solely for the attorney’s fees; a client must gain something before attorney’s fees can be awarded. While making losing parties bear their own attorney’s fees may add injury to insult, the American Rule has long been that each party pays its own lawyers.

In this case, the plaintiff obtained a judgment for $1,000 in damages and almost $150,000 in attorney’s fees. But there was no evidence to support the amount of the $1,000 award, and it is too large to constitute nominal damages. As the award to the client must be set aside, the attorney’s fee award must also. Accordingly, we reverse and render a take-nothing judgment.

MBM Financial Corporation v. The Woodlands Operating Co., No. 08-0390 (Tex. Aug. 28, 2009), appealed from Montgomery County and the Ninth District Court of Appeals, Beaumont. Jennifer Bruch Hogan, (Houston) argued for petitioner. Karen D. Smith (Woodlands) argued for respondent/cross-petitioner.

My favorite exchange comes at 26:55.

Smith: They rely upon the Gulfstates case, I think, out of this court to attempt to say that this court has made a determination that a finding of whether or not a finding of zero or nominal damages does not allow recovery of attorney’s fees.

Justice (???): What distinguishes that case is the DTPA.

Smith: Not only that your honor, but the other thing I would do with all due respect, I know Justice Jefferson you authored that opinion and Justice Hecht joined in it, but I think there’s a problem with the Gulfstates case.

Justice (???): What?!?!?

With greatest respect I say that and I’ve read it several times to be sure that couldn’t be the case…

As soon as you hear “with all due respect…” you know something good is coming.

Texas Insurance Case Attempt to Answer the Age Old Question of whether you’re “in” a car that’s lying on top of you

I’ve recently developed the disturbing habit of relaxing by listening to recordings of oral arguments. offers all the U.S. Supreme Court arguments, nearly as soon as they happen. Listening to Boumediene v. Bush ended up coming in pretty handy on my Con Law final, though I’ll reserve judgment on whether it did me any good until grades come out. Recently I’ve been getting into the oral arguments from the Texas Supreme Court, which is particularly entertaining for the ‘aw shucks’ down-home-y demeanor of some of the advocates.

So far my favorite is 06-0987 UNITED STATES FIDELITY and GUAR. CO. v. GOUDEAU, an insurance case dealing with a good Samaritan who was injured after stopping to help a stranded motorist and being pinned between his own car and the guardrail when struck by another motorist. He’s trying to recover on an under-insured motorist policy that unfortunately for him, is limited by the terms of the contract to “occupying a covered vehicle” as defined by the USF&G policy. See the petitioner’s brief (.pdf) for more background. For the most part, it’s about as exciting as a pig in the shade, but a little after the half-way mark it gets a little surreal as the justices try to parse precedent on whether one can construe “occupying” to include being run over by the car you just stepped out of. The cases cited are, while tragic in the way of all accidents, so bizarre it’s funny. You can bet I won’t be turning my back on my own car any time soon.

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06-0987 UNITED STATES FIDELITY and GUAR. CO. v. GOUDEAU (.mp3) [via Supreme Court of Texas Oral Argument Archive]

Litigation Reality Check – Reversing Juries in Coca-Cola v. Harmar

From the Texas Observer: Hitting the Bottlers

In 2000, after a six-week trial, a jury in Daingerfield, Texas, found Coca-Cola Enterprises—a bottling company 40 percent-owned by Coca-Cola—guilty of breaking state antitrust laws. Although a far cry from the $100 million they were hoping for, Harmar and the other regional bottlers won a $15.6 million judgment. Almost seven years later, they have yet to see a dime.

In late 2006, after sitting on the case for nearly two years, the Texas Supreme Court finally ruled on Coke’s appeal of the suit. By a 5-4 vote, the state’s highest civil court threw out the verdict.

Reversing a multimillion dollar judgment is not out of character for a court packed with conservative judges, six of them appointed by Gov. Rick Perry before winning pro forma elections. But the legal reasoning that the slim majority used to justify its ruling was so alarming—and sets such an unappetizing precedent—that it has spawned incredulity in Texas legal circles.

Opinion: Coca-Cola Co. v. Harmar Bottling Co., 2006-2 Trade Cas. (CCH) ¶ 75464 (Tex., Oct. 20, 2006). More commentary from Mayer, Brown, Rowe & Maw, Perlmutter & Schuelke: Vanishing Jury Trial Part 1 and part 2, and The Federalist Society.

Texas Supreme Court to feature Webcast of Oral Argument March 20th


From the Texas Appellate Law Blog we learn that Live Supreme Court Webcasts Begin March 20. This comes at a good time for those of us at UH preparing for the competitive rounds of the John Black Moot Court competition. I’ve been trawling the web for oral argument resources. The best so far – video of oral argument from the Supreme Court of Ohio and On the 20th-

In a joint project, the Supreme Court of Texas and St. Mary’s University School of Law will begin live Internet video streaming of the Court’s oral arguments March 20.

“This represents not only a great service to lawyers around Texas, but an educational opportunity for law students, colleges, high schools and the public at large,” said Chief Justice Wallace B. Jefferson. “Broadcasting these arguments over the Web will enable anyone, anywhere to see how an appellate court grapples with some of the toughest legal issues our state confronts.”

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