Your Sunday School teacher always taught you to say your prayers, right? Well, the Supreme Court of Texas recently taught a litigant to say her prayers RIGHT. And the lesson was an expensive one.
Lenk v. FDIC was a suit by the administrator of a decedent's estate against the bank that held the estate's funds. A former probate clerk, who apparently had learned a lot during his tenure about bank accounts belong to estates, looted the estate's account by using forged documents, eventually getting away with over $148,000. He did this with dozens of other estates as well. Ultimately, he got caught and was sentenced to ten years in prison. And so, the administrator turned for redress to (you guessed it) the bank.
The bank moved for summary judgment, and the administrator moved for partial summary judgment on all issues except her attorneys' fees. The trial court granted the bank's motion and denied the administrator's. The administrator appealed; her brief urged the Court of Appeals to reverse the judgment and render judgment in her favor. The court did almost exactly that, reversing and remanding to the trial court for entry of judgment in the administrator's favor. The bank sought Supreme Court review, and the administrator cross-petitioned based on the Court of Appeals' refusal on rehearing to remand the attorneys' fees issue.
The Supreme Court granted both petitions. It held that the bank was liable, rejecting the bank's statute of limitations defense on the ground that a cause of action for breach of the account agreement accrued when the administrator made demand for the funds, separate and apart from any cause of action for wrongful allowance of withdrawals by the fraudster. But it denied the administrator's request for a remand on the attorneys' fee issue. Why? Because the administrator had not briefed the issue in the Court of Appeals, and so had waived it.
The problem was that the administrator had gotten exactly what she had prayed for – effectively a reversal and rendition on her damage claim against the bank. Had she prayed a little bit longer, asking not only for that relief but also for a remand to the trial court for consideration of an issue (attorneys' fees) not yet addressed by that court, the Court of Appeals would presumably have given it to her, no cross-petition for review would have been necessary, and the Supreme Court would have affirmed the whole thing. She apparently realized her mistake after the Court of Appeals ruled, and moved for rehearing, but as we all know (or should know), rehearing is too late to seek relief not requested in your brief.
Careful appellate brief-writers write the prayer for relief early in the drafting process, not at the end of it. Not only does imagining what you'll get if (when!) you hit a home run improve your spirits when drafting the rest of the brief, but it helps focus the arguments that will get you there. And thinking about everything you will want if you win – supersedeas bond relief, costs, partial remands, and everything else – will save you from having to make that awkward call to the client: "We won, but ..."
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