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

The Texas Supreme Court issued 11 decisions, all but three of them per curiam, with this week's orders.  They are:

• In re H.V. (No. 06-0005), a juvenile justice case involving the suppression of evidence and appellate review under Section 56.03(b) of the Texas Family Code.
  
  
• Lewis v. Funderburk (No. 06-0518), resolving a 12-2 split among the intermediate courts of appeals and concluding that those courts have jurisdiction to review allegedly inadequate expert reports in health care liability cases.
  
  
• Following Lewis and reversing contrary decisions from the Fort Worth and Waco courts, the supreme court issued per curiam opinions in Moore v. Gatica (No. 07-0094), Diaz-Rohena v. Melton (No. 07-0173) (which actually came from the First District), Center for Neurological Disorders, P.A. v. George (No. 07-0174), Collini v. Pustejovsky (No. 07-0227), Graham Oaks Care Center, Inc. v. Farabee (No. 07-0228), Danos v. Rittger (No. 07-0312), Hill Regional Hospital v. Runnels (No. 07-0368), and Metwest Inc. v. Rodriguez (No. 07-0422).
  
  
• Medical City Dallas, Ltd. v. Carlisle Corp. (No. 06-0660), holding that an action for breach of warranty is a claim for breach of contract for which Chapter 38 of the Civil Practice and Remedies Code permits recovery of attorney's fees.

Osler McCarthy's detailed summaries are available here.

• Print
• Comments
• Trackbacks

Appellants surnamed Belt had a rough day in the Third Court of Appeals.

In opinions written by Justice Jan Patterson (pictured), the Court dismissed for want of jurisdiction two restricted appeals brought by Robert Belt and one brought by Justin Belt.  All three cases are styled Belt v. Point Venture Property Owners' Association, Inc., and all of them involved tax foreclosure sales.

In Robert's first case (No. 03-07-000567-CV), the Court concluded that the order at issue, which involved distribution of part but not all of the excess sale proceeds, was interlocutory and therefore not appealable.  Although Section 34.04 of the Tax Code allows appeals from orders regarding excess proceeds, the Court concluded that "[n]o statute authorizes an interlocutory appeal from an order to distribute a portion of the excess proceeds from a tax sale."

In Justin's case (No. 03-07-000568-CV) and in Robert's second case (No. 03-07-000569-CV), the Court concluded that that both appellants could not establish three of the four prerequisites for a restricted appeal:  (1) the notice of the restricted appeal was filed within six months after the judgment was signed; (2) by a party to the lawsuit; (3) who neither participated in the hearing nor filed a timely notice of appeal, post-judgment motion, or request for findings of fact or conclusions of law; and (4) the face of the record must disclose the claimed error.  Both Justin and Robert timely filed their restricted appeals, but neither was a party to the underlying lawsuit, both timely perfected (but did not pursue) an ordinary appeal, and the records in both cases failed to demonstrate error.

Of general appellate interest, the Court noted in the latter two opinions that "a party can no longer abandon an ordinary appeal and then seek a restricted appeal" (citing TRAP 30 and Salvaggio v. Brazos County Water Control & Improvement Dist., 598 S.W.2d 277 (Tex. 1980)).

The Belts have three other matters against the same opponent pending on the Third Court's docket.

• Print
• Comments (1)
• Trackbacks

In AXA Financial, Inc. v. Roberts, a consolidated interlocutory appeal and mandamus proceeding previously discussed here, the Third Court of Appeals has turned away efforts to compel arbitration under both the Texas and federal statutes.  The court first held that it lacked jurisdiction over the interlocutory appeal because the notice of appeal was not filed timely (within 20 days of the district court's order denying the motion to compel arbitration) and because a "motion to reconsider" neither extended the appellate timetable nor qualified as an independently appealable order.  Considering the mandamus petition, the court of appeals concluded that the relator failed to establish the existence of an arbitration agreement covering the dispute and that the district court acted within its discretion in refusing to consider "new" evidence submitted with the motion to reconsider.

This opinion contains a good summary of Texas arbitration law, particularly the procedure and burdens of proof relating to a motion to compel arbitration.  The lessons learned are (1) remember that an appeal from an order denying a motion to compel arbitration is accelerated, making the notice of appeal due in 20 days rather than the usual 30; and (2) if you are the movant, gather and present your evidence on the first go-round because you might not get a second chance.

• Print
• Comments
• Trackbacks

How Appealing blogger and Law.com correspondent Howard J. Bashman has this thoughtful commentary on the ups and downs of trying to get an otherwise-unappealable federal district court order certified as final under Federal Rule of Civil Procedure 54(b).  If you have issues unrelated to the remaining portion of the case and immediate appellate review (as opposed to waiting for a final judgment) would be beneficial, Rule 54(b) provides a procedural vehicle for obtaining that review.  As Mr. Bashman points out, however, the necessary commitment of time and expense, with no guarantee of review or a change in result, may be a prohibiting factor.

• Print
• Comments
• Trackbacks

I must admit, SB 1167 has flown under my radar.  This bill addresses a problem I ranted about earlier and, if passed, could eliminate "dual track" review of orders denying arbitration.  View the bill analysis here.

• Print
• Comments
• Trackbacks

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.

• Print
• Comments (3)
• Trackbacks

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.

• Print
• Comments
• Trackbacks