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STATESTATE BARBAR LITIGATIONLITIGATION SECTIONSECTION REPORTREPORT HE HE T T AADDVVOOCCATEATE TTHEHE “B“BESESTT OFOF”” LLIITTIIGAGATTIONION UUPPDDAATTEE ✯ 20142014 VOLUME 66 SPRING TABLE OF CONTENTS 2014 STATE BAR LITIGATION SECTION REPORT HE T DVOCATE A ALISTAIR DAWSON 2013-2014 LITIGATION COUNCIL MEMBERS Beck Redden, LLP SECTION OFFICERS 1221 McKinney, Ste. 4500 TERMS EXPIRE IN 2014 EDITORS Houston, TX 77010 CHRISTY AmuNY, CHAIR CADE W. BROWNING EDITOR IN CHIEF EDWARD C. DAWSON Bain & Barkley Abilene, TX PROFESSOR LONNY HOFFMAN Teaching Fellow, Lousiana State 550 Fannin, Suite 1330 University of Houston Law Center University Law Center Beaumont, TX 77701 WES CHRISTIAN 100 Law Center 2070 Stanford Avenue Houston, TX Houston, TX 77204-6060 Baton Rouge, LA 70808 PAT LONG WEAVER, CHAIR-ELEct [email protected] Burleson LLP STEVE HAYES AllYSON N. HO Wall Tower East Fort Worth, TX EDITOR EMERItuS Morgan, Lewis & Bockius LLP 201 W. Wall Street, Suite 505 J. PATRICK HAZEL* 1000 Louisiana Street, Suite 4200 Midland, TX 79701 SONIA RODRIGUEZ University of Texas School of Law Houston, TX 77002 San Antonio, TX *Deceased PAulA HINTON, VICE-CHAIR LISA HObbS Winston & Strawn, LLP GEORGE P. YOUNG GRAPHIC DESIGNER Kuhn Hobbs 1111 Louisiana, 25th Floor Fort Worth, TX JANIE ALDERMAN 101 West 6th Street, Suite 812 Houston, TX 77002 [email protected] Austin, TX 78701 TERMS EXPIRE IN 2015 CRAIG T. ENOCH, TREASURER EDITORIAL BOARD ROGER WADE HUGHES Enoch Kever JulIE BALOVICH Adams & Graham, LLP 600 Congress Ave., Suite 2800 Alpine, TX SOFIA ADROGUE’, P.C., LRM, P.C. PO Box 1429 Austin, TX 78701-3044 Looper Reed & McGraw, P.C. 222 E. Van Buren, West Tower L. HAYES FullER 1300 Post Oak Boulevard, Suite 2000 Harlingen, TX 78550 CARLOS E. CARDENAS, SECRETARY Waco, TX Houston, TX 77056 Law Office of Joseph (Sib) Abraham, Jr. ASHLEY JOHNSON PO Box 512312 J. PAul MANNING JENNIFER PARKER AINSWORTH Gibson Dunn El Paso, TX 79951 Lubbock, TX Wilson Law Firm Associate Attorney 909 ESE Loop 323, Suite 400 2100 McKinney Avenue MICHAEL SMITH, MARK A. SHANK Tyler, TX 75701 Dallas, TX 75201-6912 ImmEDIATE PAST CHAIR Dallas, TX Siebman, Burg, Phillips & Smith, LLP W. STEPHEN BENESH ERIKA KANE 713 South Washington Avenue AMY M. STEWART Bracewell & Giuliani LLP Assistant Attorney General Marshall, TX 75670 Dallas, TX 111 Congress Avenue, Suite 2300 General Litigation Division Austin, TX 78701-4061 Office of the Attorney General TERMS EXPIRE IN 2016 P.O. Box 12548 CHAIR EMERITUS MEMBERS HON. JANE BLAND Austin, TX 78711 HON. F. ALFONSO CHARLES First Court of Appeals FRED BOWERS Longview, TX 301 Fannin Street THOMAS KURTH Bowers Law Office Houston, TX 77002 Haynes and Boone, LLP 1401 Texas Avenue JENNIFER ANNE HAltOM-DOAN 2323 Victory Avenue, Suite 700 Lubbock, TX 79408-0327 Texarkana, TX HON. JANE BOYLE Dallas, TX 75219-7673 United States District Court, WALKER FRIEDMAN GEOFFREY A. GANNAWAY Northern District of Texas HON. ANN MCCluRE Friedman, Suder & Cooke Houston, TX 1100 Commerce Street Eighth Court of Appeals 604 East 4th Street, Suite 200 Room 1376 500 E San Antonio Ave # 500 Fort Worth, TX 76102 FEDERICO G. HINOJOSA Dallas, TX 75242-1003 El Paso, TX 79901 McAllen, TX LINDA S. MCDONALD HON. JEFF BROWN KAREN GREN SCHOLER Langley & Banack HON. XAVIER RODRIGUEZ Supreme Court of Texas Carter Scholer Arnett Hamada & Trinity Plaza II San Antonio, TX P.O. Box 12248 Mockler, PLLC 745 E. Mulberry Ave., Suite 900 Austin, TX 78711-2248 8150 N. Central Expressway, Suite 1950 San Antonio, TX 78212 Dallas, TX 75206 LIAISONS/ADVISORS CRAIG D. CHERRY Haley and Olson KENNON WOOTEN HON. PAul W. GREEN 510 N. Valley Mills Drive, Suite 600 Scott, Douglass & McConnico, LLP Supreme Court Liaison Waco, TX 76710 600 Congress Avenue, Suite 1500 Austin, TX Austin, TX 78701-3234 HON. TRACY CHRISTOPHER JEFF CHANDLER Fourteenth Court of Appeals Assistant editors and members, Texas Young Lawyers 301 Fannin Street ex officio: Association Liaison Houston, TX 77002 San Angelo, TX JEFFREY M. BENTON HON. GREGG COSTA Rad Law Firm ✯ SUSAN NELSON United States District Court, Southern 12900 Preston Road, Suite 900 Board Advisor District of Texas (Galveston Division) Dallas, TX 75230-1325 Waco, TX United States Post Office and V OLUME 66 Courthouse CORY L. CARLYLE DAVID CHAmbERLAIN 601 25th Street, Law Office of Cory L. Carlyle Alternate Advisor Galveston, TX 77550 P.O. Box 66093 SPRING Austin, TX Washington, DC 20035 THOMAS B. COWART 2014 TRACY NucKOLS Wasoff & Cowart, PLLC ALEX B. ROBERTS Liaison, State Bar of Texas 1440 One Lincoln Centre Beck, Redden, LLP Austin, TX 5400 LBJ Freeway 1221 McKinney St. Suite 4500 Dallas, TX 75240 Houston, TX 77010 Click on the topic to jump to the applicable article STATE BAR LITIGATION SECTION REPORT HE T ADVOCATE TABLE OF CONTENT S SPRING 2014, VOLUME 66 EDITOR’S COmmENTS by Lonny S. Hoffman ................................................................ 2 CHAIR’S REPORT by Christy Amuny .............................................................................. 3 SUSTAINING MEmbERS OF THE LITIGATION SEctION OF THE STATE BAR OF TEXAS ........... 4 THE “BEST OF” LITIGATION UPDATE 2014 SUPREME COURT OF TEXAS UPDATE Presented by Hon. Jeffrey S. Boyd Written by Hon. Phil Johnson, Heather Holmes, Robert Brailas, Nick Hendrix, Kelly Klingseisen & Georgie Gonzales .................................................................5-86 INSURANCE LAW UPDATE by William J. Chriss ................................................................................. 87-100 AttORNEY ADVERTISING UPDATE by Debbie Saviano. ................................................................................. 101-112 FIFTH CIRcuIT UPDATE by David S. Coale .................................................................................. 113-140 U. S. SUPREME COURT UPDATE—BUSINESS CASES by Allyson N. Ho . ....................................................................................141-148 AttORNEY FEES UPDATE by Mark D. White 2014 Update by L. Hayes Fuller, III .......................................................... 149-180 ENERGY AND ENVIRONMENTAL CASE LAW UPDATE by Jane Webre & Bryan Lauer. ................................................................. 181-206 COulD YOU BE A LIttlE MORE SPECIFIC? by Steven K. Hayes. ................................................................................ 207-270 THE ADVOCATE ✯ SPRING 2014 EDITOR’S COMMENTS HIS ISSUE OF THE ADVOCATE CONTAINS A “BEST OF” ARTICLES from the 2014 Litigation Update that was held in Austin, Texas in January. As a reminder, we no longer print Ta hard copy of this issue. The issue is available through a link on the Litigation Section’s website, www.litigationsection.com. Once at this site, you can click on the link for THE ADVOCATE to download the Spring 2014 “Best Of” issue. You can also access and download all previously published symposium issues of the journal. Alternatively, you can access our past issues on Westlaw and Lexis. I also want to take this opportunity to preview our next two symposia. The Summer 2014 issue will be devoted to litigating in the federal courts. The idea for this issue is two-fold: to serve as a primer for lawyers who do not find themselves LONNY S. HOFFMAN regularly in federal court; and to provide analysis for all lawyers and judges about some of the most recent and important developments on the civil side of federal practice, including pleading sufficiency, summary judgment, error preservation, attorneys’ fees procedure and recovery, and much more. The issue will appear in mid-July. We also have begun work on our Fall 2014 issue. It will be devoted to examining fiduciary duty: from the obligations that lawyers owe to their clients, generally, to looking at the law as it applies in a number of different subject matter areas. From family to probate law (and a whole lot in between), this symposium will examine fiduciary duties in numerous contexts. The issue should be out in mid-October. Questions or comments about THE ADVOCATE are always welcome. My email address is [email protected]. Regards, Lonny Hoffman Editor in Chief THE ADVOCATE ✯ SPRING 2014 CHAIR’S REPORT HE 2014 LITIGATION UPDATE INSTITUTE at the Four Seasons in Austin was an enormous success. The editors of THE ADVOCATE have done a fantastic job compiling the articles to Tbring you The Best of Litigation Update 2014. Thanks to all the contributors – to those who wrote the outstanding articles contained in this issue and those who spoke at the seminar. As you will see by these articles, the seminar truly brought forth the best of the best. The Litigation Council continuously works to improve the Litigation Update Institute each year. We also strive to provide meaningful benefits to Litigation Section members. We have a number of initiatives aimed at educating attorneys, improving the profession and giving back to those in need. Here is what we have been up to this year and what is coming soon: • New Litigation Section website, which will be easier to navigate and provide new benefits CHRISTY AmuNY for our members, including free CLE, a membership directory, online editions of The Advocate in a searchable format, etc. The website will also host the videos of the Texas Legal Legends. • News for the Bar is our quarterly online newsletter providing information on upcoming events, interesting articles and case law updates. • Providing Summer Legal Internships where law students have an opportunity to work for various legal aid entities, obtain hands-on experience and understand first-hand the fulfillment and satisfaction
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