Texas Appellate Law Blog : Texas Appellate Lawyer & Attorney : Smith Law Group, P.C. : Appeals, Sanctions, Summary Judgment : Austin, Texas

In In re AXA Financial, Inc., the Third Court of Appeals has consolidated a mandamus with an interlocutory appeal from an order denying the defendants' motion to compel arbitration.  To be honest, this event is not terribly noteworthy, but with the legislature in session, it seems timely to mention the procedural gaffe that triggers such parallel proceedings.

Basically, while the legislature has authorized an interlocutory appeal from an order denying arbitration under the Texas statute, our courts have uniformly held that no corresponding statutory remedy exists when the Federal Arbitration Act is in play.  Lawyers attempting to enforce an arbitration clause most often seek relief under both statutes for fear they will pick the wrong one.  When denying relief, trial courts usually don't explain their reasoning, leaving the movant's counsel no choice but to pursue both an appeal and a mandamus, with the Texas Supreme Court's blessing.  At the supreme court's behest, the intermediate appellate courts routinely consolidate the parallel actions.

As others have written before me, this is a silly rule that ought to be corrected.  (Some, most notably Heidi Bloch, say it already has been; the courts just don't recognize the change.)  The legislature could prevent the waste of having to bring two separate actions, only to have them consolidated, by tweaking the appellate provisions of the Texas General Arbitration Act.  Unfortunately, with the time for filing new bills passed, it will be at least 2009 before common sense can prevail.

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Haynes & Boone's Mark Trachtenberg has an editorial in today's Houston Chronicle praising the Texas Supreme Court webcasts previously covered here and here.  Mark thinks the move to webcasting was wise because it makes the Court's business more transparent and will help educate folks about how our court system works. 

Here's hoping Mark's piece gets picked up in other media markets.  Its message is worth passing around.

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The Texas Supreme Court issued no opinions with today's orders.  Could it be that the Court is distracted by the SB 1204 debate?

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In follow-up to this post, the Senate State Affairs Committee has scheduled another hearing on SB 1204 for April 2 at 9:00 a.m.  In addition, the witness list from this past Monday's hearing and the Legislative Budget Board's fiscal note are available.

UPDATE:  Per a revised notice, SB 1204 has been removed from Monday's Senate State Affairs Committee agenda.

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As reported by Howard Bashman at How Appealing:

President Bush has nominated Jennifer Walker Elrod to serve on the U.S. Court of Appeals for the Fifth Circuit:  Currently, Elrod serves as a state district judge in Houston.  She has been nominated to fill the vacancy created when Circuit Judge Patrick E. Higginbotham took senior status.  A brief biography of Elrod can be accessed here (scroll down).

Update: The official notice from the White House is now available at this link.

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I wasn't able to attend yesterday'shearing on SB 1204, but the debate was apparently lively.  According to this morning's report in the Austin American-Statesman, legislators, trial lawyers, and judges bristled at the bill's scope during more than four hours of testimony before the Senate State Affairs Committee.  Much of the criticism focused on the proposal to adopt special rules and procedures for "complex cases," which some fear would disenfranchise local judges implicitly deemed incapable of adjudicating such matters.

The Texas Trial Lawyers Association and the Texas Association of Defense Counsel don't agree on much, but both organizations oppose SB 1204. The bill seems to be losing momentum.

UPDATE:  Video of this hearing is now available through the Senate RealMedia site.  It is split into Part I andPart II(RealPlayer required).

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The Senate State Affairs Committee will hear SB 1204, the court reorganization bill previously discussed here and here, on Monday, March 26, at 9:00 a.m.  The proceedings will be webcast on the Senate's web site through this link.  The bill analysis was filed today and is available here.

Senator Kirk Watson e-mailed members of the Austin Bar Association today encouraging them to participate in the debate on this bill and welcoming them to contact him or his staff with feedback.  According to Senator Watson's message, those attending the hearing maybe allowed to testify orally or in writing.

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The Supreme Court of Texas released one opinion with today's orders.

In In re Derzapf, a father/custodial parent discontinued the maternal grandmother and step-grandfather's access to the deceased mother's children.  The per curiam Court held that the step-grandfather lacked standing to modify custody and that the grandmother failed to meet the high threshold for overcoming the statutory presumption that a fit parent acts in his children's best interest.  The supreme court conditionally granted mandamus relief from the trial court's order allowing access.

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At today's Austin Bar Appellate Section Luncheon, Justices David Puryear, Alan Waldrop, and Diane Henson (the Court's newest member) gave a panel presentation about the goings-on at the Third Court of Appeals.  Justices Waldrop and Henson both chimed in about the relative dearth of oral arguments, as previously discussed here.  Justice Waldrop indicated that he believes the number of arguments will be rising, but will remain limited becauseof the Court's workload.  Justice Henson, a self-proclaimed advocate of oral argument, stated that she intends to do what she can to facilitate it in appropriate cases.

Justice Waldrop offered a helpful tip to those desiring oral argument in the Third Court.  Don't simply request it on the cover of your brief.  Go beyond what the rules require and include a separate statement inside the front cover explaining why the Court should hear oral argument in your case.

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With this morning's live webcast of arguments before the Texas Supreme Court, a new era in Texas appellate practice has begun.  I was able to access the webcast and view the arguments without any problem.  The video feed—which has a certain "Court TV" look—appears on the left side of the screen, flanked by a brief summary of the case being argued.  A schedule of upcoming arguments, along with links to electronic briefs and summaries for each, appears on the main webcast page.

Bravo!

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While trolling through the Texas Legislature's web site over the weekend, Jerry Bullard, Co-Chair of the State Bar Appellate Section's Bench-Bar Liaison Committee, discovered an interesting bill that he (and I) originally overlooked.  With Jerry's permission, I am posting excerpts from a message he sent his colleagues about the bill, House Bill 3095.

HB 3095, authored by Rep. Corbin Van Arsdale (R-Houston), relates to the periods for disposing of certain actions and petitions by appellate courts in this state.  As its caption suggests, the bill seeks to establish deadlines for the appellate courts to dispose of all cases.  Specifically, HB 3095 would . . . [r]equire the Supreme Court . . . to rule on a regular cause not later than the first anniversary of the date the court agreed to grant review of the cause and grant or deny a petition not later than the expiration of the six-month period after the date the petition was filed.

For Supreme Court proceedings, a regular cause is defined as:  1) a case in which four (4) or more justices decide that a petition should be reviewed; 2) a direct appeal that the Court has agreed to review; or, 3) a certified question that the Court has agreed to review.

A petition means:  1) a petition for review; 2) a petition for writ of mandamus; or, 3) a petition for writ of habeas corpus, prohibition, or injunction.

[HB 3095 would also] [r]equire the intermediate appellate courts to rule or otherwise dispose of an appellate case not later than the expiration of the 18-month period after the date the case was filed with the court.  The term appellate case appears to encompass all cases filed in the courts of appeals.

[Jerry's] initial reaction to HB 3095 is to question whether the deadlines are realistic given the caseload and IOPs in some of the larger intermediate courts, the Supreme Court and the CCA, and whether the bill has the backing to pass.  [Jerry] suspect[s] we'll learn the answer to both questions as the process moves forward.

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In a joint project, the Supreme Court of Texas and St. Mary's University School of Law will begin live Internet video streaming of the Court's oral arguments March 20.

"This represents not only a great service to lawyers around Texas, but an educational opportunity for law students, colleges, high schools and the public at large," said Chief Justice Wallace B. Jefferson.  "Broadcasting these arguments over the Web will enable anyone, anywhere to see how an appellate court grapples with some of the toughest legal issues our state confronts."

"We will shed light about how the Supreme Court decides its cases, whether to counter the misimpression that an appellate argument is like Perry Mason in front of nine judges or to dispel myths about how justices on the Court decide cases."

Internet broadcast of oral arguments will be available through either the Court's Web site or the St. Mary's law school site.  The video arguments will be available in archives at the law school Web site.

Webcasting oral arguments represents a partnership between St. Mary's and the Court working through the Office of Court Administration, which provides technological support for courts across Texas.  The Supreme Court courtroom has been equipped with five remote cameras, updated audio equipment and improved lighting.

Bill Piatt, the dean of St. Mary's law school, suggested the collaboration last year in a meeting with Justice Paul W. Green, a St. Mary's law alumnus.  "We are honored that the Court is allowing us to assist in making these important proceedings accessible to the public over the Internet," Dean Piatt said.

"The Court's initiative in bringing oral arguments to the people will greatly improve the understanding of the Court's work, thereby enhancing the administration of justice in this state."  Justice Green added that the webcasts also offer a benefit to lawyers who might be preparing for their first argument before the Court, enabling them to watch the Court in action before actually appearing for arguments, and to learn about its procedures and traditions.

Bruce Hermes, technology director for the Office of Court Administration who managed the project implementation, said initial webcasts will be monitored to determine the demand.  "We are set up for 300 simultaneous viewers," Hermes said.  "After the first couple of months, we will review it to see if that meets demand."

Chief Justice Jefferson said that, with the Legislature's additional financial support, which he is seeking this session, the St. Mary's webcasting project will rival the best in the nation.  "Together, with St. Mary's on this venture and with the Legislature's support on other initiatives, we hope to bring the justice system closer to people."

The Court has issued a policy, pending revision of Texas Rule of Appellate Procedure 14, allowing attorneys by motion to the Court to opt out of webcasting a particular argument.

Source for post:  Osler McCarthy, Texas Supreme Court Staff Attorney for Public Information.

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More than once, I heard the 78th Legislature's now-infamous House Bill 4 described as "the Full Employment Act for appellate lawyers."  Considering how inaccurate that forecast was, I am approaching Senate Bill 1204, the latest proposed overhaul to the civil justice system (originally mentioned here), with some trepidation.

SB 1204 focuses largely on reforming our state's judicial structure and practice at the trial-court level, primarily by converting Texas's statutory county courts into more than 40 new district courts.  This change would take effect on January 1, 2011, with most of these offices standing for election in 2010.  Another major change would be the creation of a "complex case" judicial panel that would operate much like the multidistrict litigation panels created in 2003.

From an appellate lawyer's perspective, other provisions are potentially significant.  For example, the bill would allow mandamus to the supreme court to challenge a complex case panel's determination that a matter is not in fact "complex."  The bill would also authorize permissive appeals from certain interlocutory orders in complex and multidistrict cases.

Of broader interest, the bill would significantly alter Texas Government Code § 22.001, the statute defining the supreme court's jurisdiction, by deleting all references to specific types of cases (i.e., "dissent" or "conflict" jurisdiction) and recognizing what is now subpart (6) (jurisprudential importance) as defining the supreme court's jurisdictional reach.  This amendment would settle the debate about whether the supreme court must accept certain types of cases by providing true discretionary jurisdiction subject to one exception:  the supreme court "shall grant a petition for review in a case in which a court of appeals has declared void a statute of the state."

Another noteworthy feature of SB 1204 is that it would expressly grant "the supreme court [power to] act on a petition for review when the court deems it expedient."  This provision's purpose is not apparent.  Except for motions for rehearing of causes, the supreme court already works on its own timetable.

We will be hearing and reading a lot about SB 1204 over the next couple of months.  Some of the folks who participated in drafting this bill think it stands a fairly good chance of passage.  From what I understand, an initial hearing on the bill has been set for March19, 2006.  No doubt, this is the beginning of an interesting debate.

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With today's orders, the Texas Supreme Court has issued per curiam opinions in six cases.

In Zipp v. Wuemling, the Court held that an appeal from the district court's guardianship decision was not rendered moot merely because the ward had died while the appeal was pending.  Because issues remained with respect to who should settle the estate and whether the appellant has a legally cognizable interest in attorney's fees and costs, the supreme court reversed the court of appeals' judgment of dismissal and remanded to that court for further proceedings.

In City of Dallas v. Saucedo-Falls, the Court remanded the case to the trial court after determining that police officers and firefighters who sued the City alleging they were entitled to a pay raise "should have the opportunity to argue any grounds for waiver of immunity remaining under this Court's decisions [after the new opinion in Reata Construction Corp. v. City of Dallas, 197 S.W.3d 371 (Tex. 2006)], including whether the City's immunity from suit is waived by sections 271.151-.160 of the Local Government Code, enacted while this case has been pending on appeal."

In another immunity case, City of Sweetwater v. Waddell, the Court concluded that the court of appeals' reliance on "sue and be sued" language in the City's charter as a waiver was inconsistent with Tooke v. City of Mexia, 197 S.W.3d 325 (Tex. 2006) and remanded to the trial court for further proceedings.

In In re Texas Department of Transportation and In re Gillespie County, separate mandamus actions originating from the same dispute, the Court conditionally granted mandamus relief directing a Travis County probate court to transfer venue of the plaintiffs' claims against certain defendants to Gillespie County, a county of mandatory venue.

In Doe v. Pilgrim Rest Baptist Church, the Court treated as timely a notice of appeal filed more than 90 days after the trial court signed a severance order conditioned on payment of a filing fee.

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This morning's Austin American-Statesman reports that "the Legislature is considering two bills [House Bill 2725 and Senate Bill 1301] that would erase a $340,000 legal debt owed by Texas Supreme Court Justice Nathan Hecht" because "he challenged an ethics rebuke that stemmed from his support of friend Harriet Miers' 2005 nomination to the U.S. Supreme Court."

In fairness, the bills would allow all judges who successfully challenge ethics charges from the State Commission on Judicial Conduct to recover legal fees from the State.  However, the legislation would apply to successful challenges launched since January 2006, including Justice Hecht's.

Update:  The Fort Worth Star-Telegram has some very interesting coverage here.

Another Update:  Through the Associated Press, Law.com has picked up the story here.

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Short on time to edit a brief?  Looking for a way to help catch passive voice in your writing?  If you are a Microsoft Word user, I've got just the trick for you. 

In the Grammar Settings dialog box (Tools / Options / Spelling & Grammar), select grammar and style instead of grammar only.  With that change, Word will alert you when it locates passive voice, just as it highlights sentence fragments and misspellings.  There are several other items you can customize.

Thanks to Susan McDonald and Lynn Gaertner-Johnson for the tip.

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Last [Friday], the Texas Supreme Court drove another nail in the class action coffin.  Justifiably, Texas is now considered by most class action lawyers (on both sides of the aisle) to be the state most hostile to class actions.  One judge commented to the author, I dont know why anyone would bring a class action in state court in Texas because as far as I can tell, the Texas Supreme Court has abolished class actions—it just hasn't said so.  In Citizens Insurance Company of America v. Daccach[], Texas's High Court tightened the class action noose a bit further. . . .

Since the phrase Judicial Hellholes has been appropriated by defenders of the defense industry, I nominate Texas for a preeminent position in a new list of Dens of Iniquity.

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Blawgletter bills itself as "Business trial law with a sense of humor."  Anyone doubting this description should take a look at author Barry Barnett's two most recent posts.

In the first, Barry reviews Friday's Texas Supreme Court decision in Citizens Insurance Co. v. Daccach in light of Chief Justice John Marshall's immortal observation from McColloch v. Maryland, 17 U.S. 316 (1819):  "That the power to tax involves the power to destroy [and] that the power to destroy may defeat and render useless the power to create . . . are propositions not to be denied." In Barry's view, by sending the class plaintiffs back to square one after eight years in the court system, with another interlocutory appeal likely, the supreme court has "taxed" the Daccach class into oblivion.

In the second post, Barry simply observes that the defendants won every case handed down with last week's orders. Something is left unstated; Barry leaves it to the reader to figure out what that is.

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According to this week's State Bar Friday Update, Representative Myra Crownover has filed two companion bills (House Bill 1908 and House Joint Resolution 78) to the Senate judicial selection legislation mentioned here.  Both have been referred to the House Judiciary Committee, but have not been set for hearing.

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It's been a busy week at the Texas Supreme Court.  Today's orders included opinions in the following six cases:

In Citizens Insurance Co. v. Daccach, the court of appeals affirmed the trial court's certification of a worldwide class of securities purchasers. The supreme court reversed,decertified the class, and remanded the case to the trial court, concluding that the trial court failed to consider how res judicata affected the class representative's adequacy, the superiority of litigating the case as a class action, the typicality of claims within the class, and the predominance of common issues.  Chief Justice Jefferson and two other justices concurred.

In Moki Mac River Expeditions v. Drugg, the Court held that the plaintiffs did not establish specific jurisdiction over a nonresident defendant.  The Court reversed and remanded the case with instructions that the court of appeals consider whether the defendant is subject to general jurisdiction in Texas.  Justice Johnson, joined by Justice Medina, dissented.

In City of Galveston v. State of Texas, the Court held that the state bears the burden of showing that the legislature allows the state to sue cities.  Because the state failed to meet that burden in this negligence case involving water damage to a highway, the Court reversed and rendered.  Justice Willett, along with three others, dissented.

In In re Discount Rental, Inc., the per curiam Court conditionally issued a writ of mandamus directing the trial court to vacate an order that a judgment debtor's property be sold to satisfy a void judgment.

In Varner v. Cardenas, the per curiam Court concluded that the court of appeals correctly reversed and remanded the trial court's judgment for segregation of recoverable from unrecoverable attorney's fees, but modified the court of appeals' judgment on the basis that the lower court defined recoverable fees too narrowly.

In Ontiveros v. Flores, the per curiam Court held that the court of appeals erred by reversing the trial court's summary judgment on claims the appellant had not raised on appeal.

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In Rainbow Group, Ltd. v. Wagoner, the Third Court of Appeals has dismissed a class action defendant's interlocutory appeal from an order denying its motion to decertify the class and an order granting the plaintiffs' motion to amend the certification.  The court of appeals held that it lacked jurisdiction becausethe first order was not subject to an interlocutory appeal and because the defendant failed to timely file a notice of appeal from the second order.

Disputing discusses the case here.

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