William A. Roper, Jr. wrote:
That really IS a very nice little case for authority in appropriate Texas litigation! Thanks for posting.
Although I would hope that most of our regular Forum participants have by now learned to navigate around LexisOne and, more recently, Google Scholar, I thought that participants might benefit from a link to the Google Scholar presentation of this case:
Though your citation of the case is generally quite adequate, some using other services and resources might benefit from the full LEXIS citation which could also aid in locating the briefs through the appellate clerk:
Shepard v. Boone, No. 11-02-00043-CV , COURT OF APPEALS OF TEXAS, ELEVENTH DISTRICT, EASTLAND, 99 S.W.3d 263; 2003 Tex. App. LEXIS 722; 50 U.C.C. Rep. Serv. 2d (Callaghan) 666, January 23, 2003, Decided.
The inclusion of the case in Callaghan's U.C.C. Reporter Service
reflects the belief of editors that this was an important decision with possible U.C.C. interpretation implications in other jurisdictions!
Your citation is probably about what is needed for inclusion in a Texas memorandum of law, however Texas courts prefer to see the inclusion of a so called writ history
with each citation. "Writ history" is somewhat an archaic description, as Texas courts changed the nomenclature associated with appeals to the Texas Supreme Court from an application for a "writ of error" to a "petition for review" for appeals after September 1, 1997.
The core idea is to show whether the matter was appealed to the higher court and the disposition
of such an appeal. A decision would be deemed to have greater authority where an appeal was filed and the court expressly refused
to take the case. This might be something like "writ ref. n.r.e.
" (writ refused no reversible error), "writ den.
" (writ denied), "pet den.
" (petition for review denied). There is a hierarchy to the authority in Texas cases. In cases in which the writ or petition was denied
, the court refused to take the case, but this might have been because they didn't believe that there was any real dispute amongst the Texas districts that needed to be resolved by Supreme Court intervention. Where the writ or petition is shown to be refused due to no reversible error
, the Court is essentially saying that it will not entertain the case because the decision of the intermediate court is clearly correct
. The Supreme Court is giving its blessing
to the decision. See the reference for details.
In this particular case, it appears that no appeal to the Texas Supreme Court was ever filed. Since the case was decided after the 1997 change, the additional designation "no pet.
", meaning that no petition for review was filed should also be included:
Shepard v. Boone, 99 S.W. 3d 263 (Tex.Civ.App.—Eastland, 2003, no pet.)
Where a case is included in something like the U.C.C. Reporter, I would tend to also include that in the citation for increased authority, though this is not required.
Another similar Texas decision which cites Shepard
within footnote 12 is Leavings v. Mills
Leavings v. Mills, NO. 01-03-00047-CV , COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON, 175 S.W.3d 301; 2004 Tex. App. LEXIS 7783; 54 U.C.C. Rep. Serv. 2d (Callaghan) 678, August 26, 2004, Opinion Issued.
[No petition for review was filed.]
Even more interesting than the supportive language as to ownership and holdership is the discussion showing the limits of acceptable hearsay testimony and the necessity of an affirmative showing of personal knowledge by an affiant seeking to establish facts by affidavit.
Read the holdings in the Leavings
case and then re-read my analysis: