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November 6, 2005

Press contact: Kirston Fortune, UT Law Communications, (512) 471.7330
Program contact: Tracy McCormack, director, UT Law Trial Advocacy Program, 512-232-9327

Fifth Circuit Court of Appeals Hears Oral Arguments at UT Law, Nov. 7–10

Live web cast: mms://realaudio.cc.utexas.edu/wmtencoder/utlaw

AUSTIN, Texas—The U.S. Court of Appeals for the Fifth Circuit will sit at The University of Texas School of Law from Mon., Nov. 7, through Thurs., Nov. 10, as part of the Advocacy Program's "Judges in Residence" series.

Oral arguments this week will be heard in the Kraft W. Eidman Courtroom in the Connally Center for Justice (CCJ). The proceedings are open to the UT Law community and the public. If the courtroom becomes full, overflow rooms on the third floor of the CCJ will be available for viewing the Fifth Circuit on close circuit TV.

Normally located in New Orleans, the Fifth Circuit has been temporarily relocated to Texas due to Hurricane Katrina.

At present, the Fifth Circuit is scheduled to sit in the Eidman Courtroom on Mon., Nov. 7, and Tues., Nov. 8, from 9 a.m. to 12:30 p.m.; on Wed., Nov. 9, from 1:30 p.m. to 5 p.m.; and on Thurs., Nov. 10, from 9 a.m. to 12:30 p.m. The case summaries and Fifth Circuit Court schedule are listed below.

The UT Law School Advocacy Program's "Judges in Residence" series was designed for students to witness firsthand the intricate workings of the judicial system. For a few weeks each semester judges from various courts move their regular weekly dockets, special hearings and trials to the Eidman Courtroom. Students and faculty are invited to view the judicial proceedings and often have the opportunity to discuss the day's events with the presiding judge. Over the course of a year, students and faculty may see district, federal, appellate and the Supreme Court of Texas sitting in the Eidman Courtroom.

The University of Texas School of Law is a nationally recognized center of training in advocacy and winner of the American College of Trial Lawyers' Emil Gumpert Award. The goal of the University of Texas School of Law Advocacy Program is to produce the best advocates in both the state and the nation. Through the innovative academic courses, competitive advocacy tournaments, and the instruction of many dedicated attorneys and judges who participate in the program, our students are provided the well-rounded education necessary to achieve this goal.

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Case Summaries for November's Oral Argument Before the U.S. Court of Appeals for the Fifth Circuit

Monday, November 7, 2005

  1. Vicki Marie Egleston v. Leon Alan Egleston, No. 04-31113

    After Alan and Vicki divorced, Alan sued for bankruptcy. In bankruptcy court, he succeeded in avoiding his obligations to Vicki, save certain alimony payments. But litigation went on in Pennsylvania courts, and several contrary rulings were issued. The bankruptcy court barred Vicki's claim on res judicata grounds, and on appeal, the district court used the equitable doctrine of unclean hands to deny Vicki's claim. The district court also threw out Alan's request for damages because of Vicki's violation of an injunction from upsetting the bankruptcy court's determination. Both sides appeal.

  2. Can-Am International v. Trinidad & Tobago, No.05-20007

    At issue in this case is whether or not Trinidad & Tobago may enjoy its sovereign immunity where a political entity, the Tobago House of Assembly (THA), and Can-Am International (Can-Am), a United States corporation, executed a Memorandum of Understanding appointing the CEO of Can-Am as THA's financial consultant, on a contingency fee basis.

  3. Edward M. Milkie, Appellant vs. Extreme Networks Inc., No. 05-10007

    Milkie, a stock broker, alleges that Extreme Networks engaged in common law fraud, negligent misrepresentation and constructive fraud. The district court granted summary judgment for Extreme Networks. The issue is whether Milkie has met the heightened pleading requirements of rule 9(b), which requires plaintiffs to plead the circumstances of fraud claims with particularity.

Tuesday, November 8, 2005

  1. United States of America vs. Roman A. Brown, Appellant, No. 04-31237

    Brown pled guilty to possession of a firearm as a convicted felon. The district court sentenced Brown under the Armed Career Criminal Act ("ACCA"), which provides for an increased sentence when a person has three previous convictions for violent felonies or serious drug offenses. Brown argues his Sixth Amendment rights were violated when the district court sentenced him under the ACCA. First, Brown contends his rights were violated when the district court took his prior convictions into account although he did not admit the convictions and the fact and nature of the prior convictions were not found by a jury. Second, Brown contends that his prior conviction for simple robbery is not a violent felony under the ACCA.

  2. Tummell & Carroll, Appellant vs. Robert G. Quinlivan, et al., No. 05-30137

    Totten, the President of a company called Worldwide Floral, Inc., committed fraud in order to induce Tummell & Carroll, a law firm, to take a case for him on contingency. Quinlivan was a co-Plaintiff with Totten in that case and was the vice-President of another company called Worldwide Floral Exchange. There is no evidence that Quinlivan was involved in or aware of the fraud. However, Tummell & Carroll sued Totten and Quinlivan for attorney's fees under a quantum meriut theory, receiving a judgment in its favor. Quinlivan later filed for bankruptcy. The issue is whether the judgment in favor of Tummell & Carroll against Quinlivan can be discharged in light of the Totten's fraud.

Wednesday, November 9, 2005

  1. Fidelity and Deposit Company of Maryland v. FitzGerald Contractors, Inc., No. 05-30074 c/w No. 04-30598

    FitzGerald was a subcontractor on two construction jobs to Whitaker. Whitaker went bankrupt, and FitzGerald and other creditors filed an involuntary bankruptcy petition. For each of the construction projects, Fidelity & Deposit Company of Maryland ("F&D") had issued surety bonds pursuant to a Louisiana law protecting subcontractors like FitzGerald. This law imposes strict time limits on when a claim must be made against a surety like F&D. The questions in this case are how long the time period lasts and whether filing an involuntary bankruptcy petition constitutes making a claim.

  2. Carlos Pacheco, Appellant vs. Norman Y. Mineta, Etc., No. 04-51160

    Pacheco sued his employer, the Department of Transportation, under Title VII for both disparate treatment and disparate impact discrimination. Pacheco appeals the district court's dismissal of his disparate impact claim for lack of subject matter jurisdiction. At issue is whether or not Pacheco exhausted his administrative remedies with regards to his disparate impact claim.

  3. Marvita Shipping Co. Ltd. v. LADY JEANETTE MV, No. 04-31200

    Two ships, a tugboat and a freighter, passed in the night on a bend on the Mississippi River north of New Orleans. They communicated beforehand, and successfully avoided one another. But the freighter ran into some barges on the bank of the river. Its owner sued the other boat under admiralty law for negligence. The district court, in a bench trial, found no negligence. The question is whether the district court's determinations about which navigation rules apply was correct.

Thursday, November 10, 2005

  1. Raymond W. Beall, et al. vs United States, No. 04-41594

    This is a tax case involving the interpretation of 26 U.S.C. § 6404(e), which authorizes abatement of interest for errors or delays that occur after the IRS has "contacted the taxpayer in writing with respect to [a] deficiency or payment." Plaintiff-Appellants, the Bealls, who were limited partners in two partnerships whose general partner was under IRS investigation, allege that their ability to defend against tax adjustments was impaired by the IRS's "erroneous and unreasonable conduct of a criminal investigation;" "seizure, disorganization and loss of partnership records in the course of that investigation;" and "delay or suspension of the civil examination and adjustment process." The district court held that the court lacked jurisdiction to hear challenges to a denied request for abatement under 26 U.S.C. § 6404(e). This Court reversed, holding that the district court had jurisdiction over the matter, and remanded the case for further proceedings. On remand, the district court held that nearly all of the complained-of acts occurred before the IRS contacted the Bealls. The remaining complained-of acts were not "ministerial" and could not provide a basis for abatement. The questions facing this Court are: (1) whether the IRS contacted "the taxpayer" with respect to a "deficiency" when it sent a notice informing a partnership of an impending audit; (2) whether the IRS erred in performing a "ministerial act" when it allegedly (i) delayed the issuance of a criminal referral, (ii) improperly seized the partnership's books and records, (iii) lost some of the partnership's books and records, (iv) returned the partnership's books and records in disarray, and (iv) impaired access to the partnership's books and records for five years; and (3) whether the district court erred in dismissing the taxpayers' claim without permitting further discovery.

  2. Wilson W. Wilson, Etc. vs. State Farm Fire & Casualty Insurance Co., Appellant, No. 04-31167

    This case involves an insured party whose claim was denied after her home was destroyed in a fire. The insurer, State Farm Fire and Casualty Company ("State Farm"), alleges the defenses of arson and knowing material misrepresentation of fact on the part of the insured. State Farm, appeals the district court's entry of judgment (after a bench trial) for Plaintiff-Appellee, Wilson. State Farm claims (1) it met its burden of proof to succeed on its arson defense; (2) the district court should have switched the burden of proof to Wilson; and (3) the policy was void for fraud.

Fifth Circuit Court Schedule

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
AUSTIN, TEXAS

The Court has determined that the following cases be assigned for oral argument at AUSTIN, TEXAS in the Kraft W. Eidman Courtroom of the University of Texas at Austin School of Law, 727 East Dean Keeton St., on the days hereinafter named to wit:

COUNSEL FOR EACH PARTY MUST PRESENT ORAL ARGUMENT UNLESS EXCUSED BY THE COURT FOR GOOD CAUSE SHOWN. CASES MARKED * ARE LIMITED TO 20 MINUTES PER SIDE. CASES NOT SO MARKED ARE LIMITED TO 30 MINUTES ARGUMENT TO THE SIDE UNLESS PREVIOUSLY ADVISED OF A GRANT OF ADDITIONAL TIME. THE WORD "SIDE" REFERS TO PARTIES IN THEIR POSITION ON APPEAL. IF IN DOUBT, CONSULT THE CLERK'S OFFICE.

MONDAY, NOVEMBER 7, 2005 – COURT CONVENES AT 9:00 A.M.

TUESDAY, NOVEMBER 8, 2005 – COURT CONVENES AT 9:00 A.M.

WEDNESDAY, NOVEMBER 9, 2005 – COURT CONVENES AT 1:00 P.M.

THURSDAY, NOVEMBER 10,2005 – COURT CONVENES AT 9:00 A.M.

CHARLES R. FULBRUGE III
CLERK OF COURT
HOUSTON, TX 09/30/05 - 11

IMPORTANT NOTES

  1. All oral arguments are recorded FOR THE COURT'S EXCLUSIVE USE. PERSONAL RECORDERS ARE NOT PERMITTED IN THE COURTROOM. With advance approval however, counsel may contract for an official court reporter to be present and transcribe the argument.
  2. Upon request, the clerk will telephone counsel when an opinion is issued.
  3. COUNSEL PRESENTING ORAL ARGUMENT MUST REPORT IN PERSON BEFORE 8:30 A.M. ON MONDAY, TUESDAY AND THURSDAY, BEFORE 12:30 P.M. ON WEDNESDAY TO KRAFT W. EIDMAN COURTROOM TELEPHONE NUMBER 512-232-1258 (DURING COURT WEEK ONLY).
  4. PLEASE CALL THE APPELLATE VOICE INFORMATION SYSTEM AT 504-310-8514, ONE WEEK BEFORE THE BEGINNING OF COURT WEEK TO RECEIVE THE NAMES OF THE PANEL JUDGES.

PLEASE VISIT OUR WEBSITE AT WWW.CA5.USCOURTS.GOV FOR UPDATES TO THE CALENDARS.