Texas Appellate Lawyer & Attorney : D. Todd Smith Law Firm : Appeals, Sanctions, Summary Judgment : Austin, Texas

From an article in yesterday's Houston Chronicle:

Five years after Texas insurance regulators ordered State Farm to cut homeowners' rates by 12 percent, the insurance company's legal battle to avoid the reduction continues to languish.

The latest delay came this week, when nearly three years after the case was submitted to a three-judge panel of the Third Court of Appeals, it was assigned to a new panel.

Chief Justice Kenneth Law [pictured] said the reassignment was rare but was done so that the same judges will hear the 2003 rate case and two later appeals involving rate disputes between State Farm and the Texas Department of Insurance.

"In this case, it is to make sure those three opinions are consistent by assigning them to very similar or the same panel," said Law, who was a member of the previous panel and remains on the new panel.  The other two panelists are different.

He said the court may decide to rule on all three appeals at one time and does not expect the assignment to a new panel to cause a significant delay.

But the six justices at the Third Court are already struggling to reduce the biggest case backlog of any of the 14 intermediate appeals courts.  Law said it is taking the court so long to resolve appeals because of judicial turnover, budget cuts and the complicated administrative law cases that make up a significant part of the Austin-based court's workload.

State Farm won a district court ruling that part of a 2003 law that allows for immediate refunds was unconstitutional because it didn't give the company due process.  The Insurance Department appealed to the Third Court.

The other appeals are related to the initial dispute and involve questions of whether State Farm is charging excessive rates and whether Insurance Commissioner Mike Geeslin had evidence and authority to require the company to get prior approval before raising rates. . . .

The lead case is Commissioner of Insurance v. State Farm Lloyds (No. 03-05-00067-CV).  The reassignment order does not appear on the court's released orders list.

I practice in the Third Court and am mostly sympathetic to the explanation Chief Justice Law gave for the slow-moving docket.  Four of the court's six seats were on the ballot during the 2006 election cycle,  The Chief is up in November, and he has drawn a strong opponent in former Justice Woodie Jones.  The judges must campaign in a large and diverse 24-county district.  If they want to keep their jobs, they have to spend a lot of time away from the court's day-to-day business.

But to change two of the three judges three years after the initial panel heard argument?  I'm not sure I see the point in that.  The other two cases were filed after No. 03-05-00067-CV.  One of them was argued nine months after the lead case, and the other was argued six months later (seven months ago).  Is the case going to be re-argued before the new panel?  Without a compelling reason, and with an already slow-moving docket, it is difficult to see the benefit to this move.

• Print
• Comments
• Trackbacks

The West Texas town of Eldorado is more than 200 miles from Austin.  So imagine my surprise when I realized that any appeals coming out of the drama surrounding the Fundamentalist Church of Jesus Christ of Latter Day Saints "Yearning for Zion" Ranch (which the ABA Journal describes as "what surely will be among the largest child custody cases in U.S. history") will be heard by the Third Court of Appeals, right here in the Live Music Capital of the World.

Surprisingly few Texas family law bloggers have weighed in on the FDLS matter.  I'm sure some of them were among the hundreds who volunteered to serve as court-appointed ad litems in more than 100 child removal cases the State filed in the 51st District Court (which serves Schleicher County and nearby Tom Green County, among others).  What an incredible effort.

It will be interesting to see how the appeals will be handled logistically.  Some of the attorneys involved have identified Judge Barbara Walther's decision to hear the State's evidence en masse, rather than child-by-child, as a potential ground for reversal.  I suspect the challenges arising from the sheer numbers will carry over into the appellate court to a significant degree.

• Print
• Comments (2)
• Trackbacks (1)

The Texas Supreme Court recently announced changes to several Texas Rules of Appellate Procedure and the adoption of Texas Rule of Judicial Administration 15 .  The rules highlighted below will have the broadest effect in civil cases.  My comments appear in italics.

• TRAP 9.3 reduces the number of copies of certain documents a party must file with the Supreme Court and Court of Criminal Appeals.  Great.  Now please give us e-filing.
  
  
• TRAP 9.8 allows appellate courts to use fictitious names or initials in certain family law cases to protect the privacy of minor children.  A sensible move.
  
  
• TRAP 10.1(a)(5) eliminates the certificate-of-conference requirement for motions for rehearing and motions for en banc reconsideration of panel decisions.  It's about time.  Why did it take more than 10 years after the new TRAPs were adopted to fix this quirk?
  
  
• TRAPs 28.1 and 28.2 establish a more uniform appellate timetable for accelerated appeals and add new procedures governing agreed interlocutory appeals.
  
  
• TRAP 38.1 allows parties to include optional written statements regarding oral argument in their briefs.  A lot of us were doing this anyway.
  
  
• TRAP 39  provides the grounds on which the intermediate appellate courts may determine that oral argument is unnecessary.  While well intentioned, this change is meaningless as a practical matter because the court of appeals doesn't have to give the parties a reason for denying oral argument.
  
  
• TRAP 41.3 addresses the precedent that applies in cases transferred from one court of appeals to another for docket-equalization or other purposes.  The transferee court is to apply the law of the transferor.  I always thought that the courts of appeals were to apply the law of Texas, not their own version of it.  This could get interesting if the transferee and transferor courts are split on a given issue.
  
  
• TRAP 49 governs panel rehearing and en banc reconsideration, including new provisions clarifying the procedures for seeking en banc review.
  
  
• TRAP 52 re-focuses the verification requirement in original proceedings from factual statements in the petition to a certification that the filer has reviewed the petition and concluded that factual statements are supported by record evidence.  This change should allow counsel to do the verifying, which will help speed the process of preparing and filing the petition.
  
  
• RJA 15 addresses appeals from trial courts in counties falling in more than one appellate district (Texarkana and Tyler, and Texarkana and Dallas).  When separate appeals are properly filed in more than one court of appeals and the parties cannot agree to consolidate, the trial-court clerk is to randomly select one of the appellate courts for consolidation.  This rule wouldn't be necessary if the legislature would revamp the appellate districts and eliminate the dual-jurisdiction counties. 

The Court is accepting public comments on the proposed changes through June 30, 2008.  The amendments, with any changes, will take effect September 1.

• Print
• Comments (2)
• Trackbacks

After last week's barrage (from which I'm not the only one still recovering), the Texas Supreme Court issued just two decisions with this week's orders.

In Ansell Healthcare Products, Inc. v. Owens & Minor, Inc. (06-0386) (per curiam), the Court followed last week's decision involving the same parties and issues, Owens & Minor, Inc. v. Ansell Healthcare Products, Inc. (No. 06-0322).  There, the Court held that, under Section 82.002 of the Civil Practice and Remedies Code, manufacturers must indemnify an "innocent seller" only for the portion of the defense associated with the seller's own products.  Because the court of appeals' decision conflicted with that rule, the Court reversed and remanded to the trial court for further proceedings.

In Texas Mutual Insurance Co. v. Ledbetter (No. 06-0814), the Court concluded that an insurance carrier should have been allowed to intervene and assert its statutory subrogation claim to the "first money" paid out in a court-approved wrongful-death settlement.  Although the plaintiffs had an absolute right to nonsuit their own claims, the carrier's intervention was a pending claim for affirmative relief that could not be prejudiced by a nonsuit.  The Court affirmed the court of appeals' judgment reinstating the intervention, but otherwise reversed and remanded the case to the trial court to sort out the details.

In other noteworthy developments, the Court granted rehearing in Entergy Gulf States, Inc. v. Summers (No. 05-0272), a controversial decision publicly rebuked by legislators.  No date has been set for oral argument.

• Print
• Comments
• Trackbacks

In Finney v. Vanderbilt Mortgage & Finance, Inc. (No. 03-07-00329-CV), the Third Court of Appeals reminds us that a request for findings of fact and conclusions of law does not extend the deadline for filing a notice of appeal from a summary judgment.  Other than for accelerated appeals, such requests push the deadline from 30 days to 90 days after the judgment is signed if "findings and conclusions either are required by the Rules of Civil Procedure or, if not required, could properly be considered by the appellate court."  TRAP 26.1(a)(4).

Because findings and conclusions are neither required nor properly considered on appeal in the summary judgment context, and because the appellant in Finney did not file his notice of appeal within 30 days after the judgment was signed, the notice was not timely.  The court therefore dismissed the appeal for want of jurisdiction.

• Print
• Comments
• Trackbacks

In today's On Appeal column, Law.com's Howard Bashman discusses those instances in which an appellate judge, rather than writing a separate concurring opinion, merely issues a short statement to the effect that he or she concurs in the result.  While somewhat rare, Texas appellate justices occasionally engage in this practice.

Bashman concludes:

A judge who cares enough to note his or her disagreement with the majority's approach should dignify the case with at least a brief explanation of the reason for that disagreement.  And if he or she cannot supply such an explanation, then perhaps he or she should simply join in the majority opinion.

It's hard to find fault with this conclusion.  Really, what purpose does "concurring in the result" serve, other than to tell the public that the writer just didn't want to join the majority opinion?  Without some explanation, the reasons for that decision are a mystery to the parties and other litigants with potentially affected cases.  If the majority opinion has a defect in reasoning or if the law is vulnerable to change in a way the parties haven't emphasized, please tell us so we can better do our job as advocates.

• Print
• Comments
• Trackbacks

The Texas Supreme Court issued its first decision of 2008 with today's orders.  In In re Brookshire Grocery Co. (No. 05-0300), the Court held that a motion for new trial filed within 30 days of judgment, but after a preceding motion for new trial had been overruled, did not extend the trial court's plenary power under TRCP 329b.  The Court based its decision on language in the rule allowing an amended motion to be filed without leave of court when no preceding motion for new trial has been overruled and the amended motion is filed within 30 days of the judgment.  Chief Justice Jefferson's majority opinion (in which Justices O'Neill, Medina, Johnson, and Willett joined) also relies on the rule's history and purpose.

The trial court denied Brookshire's first motion for new trial and signed a judgment conforming to the jury's verdict.  More than 30 days after signing the judgment, the trial courtattempted to grant Brookshire's second motion for new trial, which was filed within 30 days of the judgment but after the first motion was overruled.  Under these facts, the supreme court concluded that the trial court lacked jurisdiction to grant a new trial and agreed with the court of appeals' decision to order mandamus relief.

Justice Hecht (joined by Justices Wainwright, Brister, and Green) dissented.  The dissenting justices would have held that the second motion extended the plenary period, and thus would have allowed the trial court to rescind its judgment in favor of a new trial.

• Print
• Comments (2)
• Trackbacks

A lawyer acquaintance called today to ask whether his client (which had suffered a significant money judgment) could mitigate accrual of interest by paying the judgment without rendering its anticipated appeal moot.  The Texas Supreme Court laid out the basic procedure for addressing this situation in Marshall v. Housing Authority of City of San Antonio, 198 S.W.3d 782, 787 (Tex. 2006):

Usually, when a judgment debtor voluntarily satisfies the judgment, the case becomes moot and the debtor waives any right to appeal.  The rule is intended to prevent a party who voluntarily satisfies a judgment from later changing his or her mind and appealing.  We have held, however, that payment of a judgment will not moot an appeal from that judgment if the judgment debtor timely and clearly expresses an intent to exercise the right of appeal and if appellate relief is not futile (citations omitted).

Study this decision and the cases it cites closely if you are facing a situation in which your client would like to pay a judgment to stop the interest clock from running, yet wants to pursue an appeal from that judgment.  If handled properly in the right case, you maybe able to do both without giving up your client's appellate rights.

• Print
• Comments
• Trackbacks

In Railroad Commission of Texas v. Coppock (on motion for rehearing), the Third Court of Appeals has reversed a district court's determination that the Commission's basis for extending a surface coal mining permit that the miner lacked a market for selling its coal was not authorized under the Texas Natural Resources Code.

The merits of this case are something only an administrative lawyer could love.  A straightforward procedural issue is what grabbed my attention.  The Third Court panel glossed over the appellants' position that an argument characterized as an independent ground for affirmance could not be heard because the appellees did not file their own notice of appeal.  See Tex. R. App. P. 25.1.  Instead of deciding whether Rule 25.1 was in play, the panel addressed the merits of the appellants' argument "[i]n the interests of justice."  What's more, because the court reversed on another ground, the entire discussion is arguably dicta.

• Print
• Comments
• Trackbacks