PI on Appeal: Overview and the Shifting Trends

PI on Appeal: Overview

and the Shifting Trends

Atrial court’s judgment brings finality to one phase of a case, but many litigation attorneys find that they are soon challenged to answer a new series of questions from their client: • Should we aim for a post-judgment settlement? • Should we roll the dice on appeal? • H ow often do the courts of appeals reverse judgments for plaintiffs or defendants in personal injury cases? • D o the Houston courts of appeals reverse more or less often than other courts? • D id the 2018 elections have an impact? This article aims to help attorneys answer client questions like these, using empirical data from the authors’ study of all civil appeals 1 decided by the fourteen Texas courts of appeals during the 2018- 2019 court year. The study categorized decisions according to the procedure by which the case was decided and the substance of the claim. 2 When the outcome was a reversal, 3 the study identified the reason for the reversal. The key findings—with a focus on tort appeals and the Houston courts of appeals—are outlined below.

REVERSALS IN TORT AND DTPA CASES Across Texas, the ground is shifting in appeals of both tort and DTPA cases. As recently as the 2011-2012 court year, when the plaintiff in a tort or DTPA case prevailed in the trial court and the defendant appealed, the defendant won a reversal half the time. During the 2018- 2019 court year however, the reversal rate plunged to 27%.

On the other side of the equation, the 2018-2019 court year demonstrated that when the defendant prevailed in the trial court and the plaintiff appealed, the chances of reversal were only 17%, down from 25% in the 2011-2012 court year.

In four courts of appeals—the First and Fourteenth Courts in Houston, as well as the courts in Dallas and San

Antonio—the November 2018 elections appear to have impacted the disposition of tort and DTPA appeals. All of the justices on those courts were Republicans until newly elected Democratic majorities took the bench in January 2019. To obtain an early look at whether the changed makeup of these courts affected outcomes in tort and DTPA cases, the authors compared decisions issued during the last four months of 2018 and the first eight months of 2019. There was a significant shift. When a tort or DTPA plaintiff prevailed in the trial court and the defendant appealed, the reversal rate fell from 39% to 17% after the new Democratic justices took the bench. In appeals by tort and DTPA plaintiffs, the reversal rate rose from 5% to 18%.

The statistics do not show that these four courts are outliers. In fact, this shift generally brought these courts into alignment with trends occurring statewide. Moreover, although these statistics are based on hundreds of appeals, they should be approached with caution as they are based on relatively short time frames. It remains to be seen whether tort and DTPA plaintiffs will continue to enjoy these newly improved odds in the years to come.

REVERSALS FOLLOWING TRIALS AND SUMMARY JUDGMENTS Broadening the focus from tort and DTPA appeals to all types of civil appeals, the reversal rate in all fourteen Texas courts of appeals was 30% during the 2018-2019 court year. In Houston, the reversal rates were similar: 30% in the First Court of Appeals and 31% in the Fourteenth Court of Appeals. Generally, reversal rates across the state were lower than average in appeals from final judgments resulting from jury verdicts, bench trials, and summary judgments. On the other hand, reversal rates were higher than average in other types of appeals, including appeals from denials of motions to compel arbitration, default judgments, special appearances, and temporary injunctions. Jury Verdicts The phenomenon of the “vanishing jury trial” has a parallel—the vanishing jury trial appeal. Between the 2001-2002 court year and the 2018-2019 court year, the number of appeals following jury trials across Texas declined by 45%.

When judgments on jury verdicts were appealed, the statewide reversal rate was 26%. In Houston, the reversal rates were significantly higher: 38% in the First Court of Appeals and 39% in the Fourteenth Court of Appeals.

Statewide, when the courts of appeals reversed judgments entered on jury verdicts, they most often did so because the evidence was legally insufficient to support the verdict, or because one of the parties was otherwise entitled to judgment as a matter of law. These reasons accounted for 63% of the reversals. Charge error accounted for 14% of the reversals. Factual insufficiency and “great weight” reasons accounted for 10% of the reversals. Evidentiary rulings did not play a significant role in reversals.

Appeals was close to the statewide rate, with a reversal rate of 21%. The Fourteenth Court of Appeals reversed less often, at a rate of only 13%.

Statewide, the most common reason for reversals following bench trials was that the evidence was legally insufficient to support the judgment, or one of the parties was otherwise entitled to judgment as a matter of law. These reasons accounted for 89% of the reversals. The remaining 11% of reversals were based on errors in procedure. No appeals were reversed based on factual insufficiency or the erroneous admission or exclusion of evidence.

Summary Judgments In contrast to appeals following jury trials and bench trials, summary judgment appeals are on the rise. Between the 2001-2002 court year and the 2018-

Bench Trials Like appeals following jury trials, appeals following bench trials are dwindling. Between the 2001-2002 court year and the 2018- 2019 court year, the number of appeals following bench trials across Texas declined by 45%, just as appeals following jury trials did.

When judgments following bench trials were appealed, the statewide reversal rate was 20%. The First Court of

2019 court year, the number of summary judgment appeals across Texas increased by 186%.

In these appeals, the statewide reversal rate was 25%. In Houston, the reversal rates were similar: 26% in the First Court of Appeals and 25% in the Fourteenth Court of Appeals. Statewide, summary judgments for tort defendants, employers in employment cases, and insurers in insurance coverage cases were reversed at a significantly lower rate (15%) than summary judgments in all cases combined (26%). The reason for summary judgments reversal was most often the existence of a fact issue, or, in appeals from noevidence summary judgments, the existence of some evidence. These reasons accounted for 50% of the reversals. Errors of law accounted for 42% of the reversals. Procedural errors accounted for the remaining 7%.

Only 8% of the summary judgment appeals were from pure no-evidence summary judgments. Of those, 43% were in personal injury cases, accounting for 19% of the total summary judgment appeals in personal injury cases. When the summary judgment motion was based solely on no-evidence grounds, the reversal rate was 22%, which is slightly less than the reversal rate of 25% in appeals from traditional or hybrid summary judgments. ‘‘ Across Texas, the ground is shifting in appeals of both tort and DTPA cases.”

CONCLUSION This article has provided a brief overview focusing on tort appeals and the Houston courts. The authors’ complete study, which will be published in the Houston Law Review this spring, 4 will provide further details, as well as data and analysis about other types of appeals and other courts of appeals across Texas .

thehoustonlawyer.com Kent Rutter is an appellate partner at Haynes and Boone, L.L.P. and is president of the State Bar of Texas Appellate Section.

Natasha Breaux is an appellate associate at Haynes and Boone, L.L.P. and is on the Editorial Board of The Houston Lawyer.

Endnotes 1. To present an accurate picture of reversals, certain types of opinions were excluded before these statistics were calculated. For example, appeals in juvenile cases, although categorized by the Texas courts as civil cases, were excluded because in reality they are quasi-criminal in nature. Also excluded were appeals that were not decided on the merits, such as appeals that were dismissed for want of prosecution and appeals in which an affirmance or reversal was entered at the request of the parties pursuant to settlement. The remaining decisions—1,690 in all—form the basis of the findings presented here. 2. The decisions were categorized according to the procedure and claims that were the focus of the appeal. Thus, if the focus of the appeal was a partial summary judgment granted on some issues, not the subsequent trial of the remaining issues, the appeal was categorized as a summary judgment appeal. Likewise, if the focus of the appeal was a breach of contract claim, not an ancillary tort claim, the appeal was categorized as a contract appeal. 3. A n appeal was classified as an affirmance even if the judgment was modified or reversed in part, if the modification or reversal affected only a small portion of the judgment. For example, an appeal in a suit for damages was classified as an affirmance if the court of appeals left most of the damages undisturbed, and reversed or modified only a relatively small component of the damages or a relatively small award of prejudgment interest, sanctions, or attorney’s fees. 4. K ent Rutter & Natasha Breaux, Reasons for Reversal in the Texas Courts of Appeals, 57 HOUS. L. REV. __ (Spring 2020).

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