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

The Texas Supreme Court released two new opinions with this week's regular orders, both of which involved petitions for writ of mandamus.

In In re Hall (No. 07-0322), the Court held that an indigent adult who had been adjudicated delinquent as a minor and received a 40-year sentence had no statutory right under the Juvenile Justice Code to appointed counsel in a habeas corpus proceeding.  The Court did not decide the case based on the offender's age, but instead relied on statutory language limiting the right to appointed habeas counsel to situations in which "the legality of detention" has been challenged.  Because the Court determined that "detention" means "pre-adjudication confinement of the child, not the post-adjudication commitment at issue here," it denied mandamus relief.

Aside from its outcome, Hall is significant because the relator received assistance in the supreme court through the State Bar Appellate Section's Pro Bono Pilot Program.  The Texas Bar Journal recently published an article covering that program, and I have previously discussed it here.

In In re International Profit Associates, Inc. (No. 08-0531) (per curiam), the Court granted mandamus relief from a trial court's order refusing to dismiss a lawsuit in favor of arbitration.  As a condition of enforcing a forum-selection clause in the parties' contract, the trial court had required the movant to prove that it pointed the clause out to to the plaintiff when they made the agreement.  The supreme court determined that the order improperly shifted the burden of proof, which lies with the party opposing a forum-selection clause, and thus abused its discretion.

• Email This
• Print
• Comments
• Trackbacks

The Texas Supreme Court issued one decision with this week's exceptionally short set of regular Friday orders.

In In re Watkins (No. 06-0653), the Court denied mandamus relief from an order granting the plaintiff a 30-day extension of time for filing an expert report under CPRC § 74.351(a).  The Court released concurring opinions from Chief Justice Jefferson (joined by Justice O'Neill), Justice Johnson, and Justice Willett.

Justice Brister's majority opinion acknowledged the concurrences' discussion of whether the plaintiff originally served a deficient report or no report at all—significant to whether the defendant had a right to an interlocutory appeal—but concluded that mandamus was unavailable either way.  (The court of appeals dismissed the defendant's interlocutory appeal for want of jurisdiction, a ruling the defendant did not challenge in the supreme court.)

• Email This
• Print
• Comments
• Trackbacks

The Texas Supreme Court issued four new decisions with this week's orders.  Links to the opinions are available here.

The two signed opinions involved mandamus actions.  (The other two were per curiam opinions on petitions for review.)  I haven't looked at the statistics, but it seems as if the Court has put out more mandamus decisions than usual lately.

• Email This
• Print
• Comments
• Trackbacks

This is the fourth installment of my series entitled "20 Questions About Texas Appellate Practice."  The question answered here is:  "If an appeal is not available, do I have any other options for obtaining higher court review?"  Visit the original post (linked above) for the list of questions updated with links to their respective answers.

If a court order cannot be appealed because it is neither a final judgment nor otherwise made appealable by statute, relief may be available through the appellate courts' authority to issue extraordinary writs.  The most common writ in civil matters is mandamus, which is an original proceeding filed directly in the issuing court.  (The rules are different for habeas corpus, which is beyond the scope of this post.)

The Texas Supreme Court and the courts of appeals have concurrent jurisdiction to issue writs of mandamus in some circumstances.  When that is the case, the petition usually must be presented to the court of appeals first.

To obtain mandamus relief, the requesting party—known as "the relator"—must show that the trial judge committed a clear abuse of discretion for which there is no adequate remedy at law.

The abuse of discretion standard is very deferential to the lower court’s ruling.  A court abuses its discretion by acting arbitrarily, unreasonably, or without reference to guiding principles.  If the facts are disputed and the evidence conflicts, no abuse of discretion has occurred.  But a trial court has no “discretion” in determining what the law is or applying the law to the facts.  A clear failure by the trial court to analyze or apply the law correctly is an abuse of discretion.

Texas courts have struggled to define what constitutes an inadequate remedy at law.  For many years, that requirement was satisfied only when parties were in danger of losing substantial rights.  Merely showing that an appeal would involve more time, expense, or delay than a mandamus was not sufficient.

Recently, the Texas Supreme Court formulated a balancing test and concluded that an appellate remedy is adequate when the benefits obtained by permitting mandamus review are outweighed by the detriments of such review.  Under the new standard, mandamus issues to correct significant rulings in exceptional cases, such as those involving important issues of first impression, issues likely to recur, and issues that elude answer by appeal. The Court adopted the new standard to spare parties and the public the time and expense of unnecessary proceedings, preserve important rights from impairment or loss, and curtail the legislative enlargement of interlocutory appeals.

Commentators have expressed concerns that the new standard will lead to an increase in mandamus filings and an expansion beyond the writ's traditionally narrow scope.  Time will tell whether those concerns are well founded.

Additional information is available here.

• Email This
• Print
• Comments
• Trackbacks

That was the title of a CLE presentation I gave last Friday to members of the Austin Bar Association as part of its Fourth Friday CLE series.  In addition to some basic mandamus principles, I covered recent rule changes affecting mandamus practice and how recent Texas Supreme Court decisions have treated the requirement that relator have no adequate remedy at law.

I'm including links to the paper I handed out (authored entirely by fellow Austin appellate lawyer Kurt Kuhn) and the PowerPoint presentation I used (which contains both my work product and Kurt's). I hope those who attended found the presentation interesing and informative.

• Email This
• Print
• Comments
• Trackbacks (1)

The Texas Supreme Court issued no opinions with this week's orders.  Of interest, the Court issued stays in three mandamus cases, a subject on which I happen to be speaking today (mandamuses, not stays).

• Email This
• Print
• Comments
• Trackbacks

The Texas Supreme Court issued four decisions—two of which were among the older cases on its docket—with this week's regular orders.

In Pleasant Glade Assembly of God v. Schubert (No. 05-0916), the Court held that a church was not estopped from asserting its constitutional rights, reversed a money judgment against the church, and rendered judgment of dismissal because the case represented an ecclesiastical dispute over religious conduct.  Chief Justice Jefferson, Justice Green, and Justice Johnson each filed separate dissenting opinions.

In JCW Electronics, Inc. v. Garza (No. 05-1042), the Court held that the proportionate responsibility statute (Chapter 33 of the Civil Practice and Remedies Code) applies to personal injury claims brought under a breach of implied warranty theory.  Applying that rule to the jury's finding that the decedent was 60 percent responsible, the Court determined that the plaintiff's claims were barred and rendered a take-nothing judgment.  Chief Justice Jefferson (joined by Justice O'Neill) concurred.

In In re Chambless (No. 07-0767) (per curiam) the Court concluded that the trial court abused its discretion by ordering temporary grandparental visitation without allowing the custodial parent an opportunity to be heard.

In In re Office of the Attorney General (No. 08-0165) (per curiam), the Court determined that the trial court's temporary restraining order and related orders violated Texas Rules of Civil Procedure 680 and 684 in various ways and were therefore void.  Because TROs are not appealable, the Attorney General had no adequate remedy at law, and the Court granted mandamus relief.

Unless the Court issues a special set of orders next week, it appears that the last regular orders until late August may come on Friday, July 11.

• Email This
• Print
• Comments
• Trackbacks

The Texas Supreme Court issued three opinions with today's regular Friday orders.

In In re Roberts (No. 05‑0362) (orig. proceeding) (per curiam), the Court concluded that allowing plaintiffs a 30-day grace period to amend expert reports in a health-care liability case "does not substantially prolong litigation or allow for extensive discovery" and therefore does not cause the kind of delay for which mandamus is available under its recent decision in In re McAllen Medical Center.  The Court somewhat snidely observed that this original proceeding had delayed the case for four years, in contrast to the the mere 30-day delay the extension would have caused.

In In re Methodist Healthcare System of San Antonio, Ltd. (No. 05-0575) (orig. proceeding) (per curiam), a health-care liability case involving the trial court's refusal to dismiss based on allegedly defective expert reports, the Court conditionally granted mandamus relief and instructed the court of appeals to consider whether an adequate appellate remedy exists in light of In re McAllen Medical Center.

In FKM Partnership, Ltd. v. Board of Regents of the University of Houston System (05‑0661), the Court held that the trial court retained jurisdiction over a condemnation action after the condemning authority amended its petition to reduce the amount of property to be taken by more than 97 percent.  The Court further held that the condemning authority was liable to the landowner for certain fees and expenses because the reduction in property condemned effectively dismissed the original proceeding.  Justice Willett issued an opinion concurring and dissenting in part.

• Email This
• Print
• Comments
• Trackbacks

I'm a little late to this party—I just happened to be at a conference today and another function this evening with some of the lawyers involved—but the Texas Supreme Court denied the State's mandamus petitions in the FLDS cases this afternoon.  The Supreme Court of Texas Blog discusses the per curiam decision in the lead case and Justice O'Neill's concurring and dissenting opinion (joined by Justices Johnson and Willett) here.

5/30/08 Update:  Texas Lawyer has this follow-up story, which unfortunately fails to credit my friend Amy Warr, of Alexander, Dubose, Jones & Townsend, for the result she obtained on the mothers' behalf.

• Email This
• Print
• Comments
• Trackbacks

The Texas Supreme Court issued two decisions with today's regular orders.

In Providence Health Center v. Dowell (No. 05-0386) (consolidated with Petit v. Dowell (No. 05-0788)), a negligence action against emergency-room personnel for failing to prevent a suicide, the Court concluded that any connection between releasing the patient and the patient's death was too attenuated for proximate cause.  The Court therefore reversed and rendered a take-nothing judgment.

In In re Team Rocket, L.P. (No. 06-0414) (orig. proceeding), the Court held that, once a trial court rules on the merits of a motion to transfer venue, a plaintiff cannot avoid the ruling by nonsuiting the case and re-filing in another county.

• Email This
• Print
• Comments
• Trackbacks

By this order, the Third Court of Appeals has canceled the oral argument on the application for emergency stay in In re Sara Steed, et al. (No. 03-08-00235-CV) and has summarily denied the stay.  The court also denied the stay sought in the companion case, In re Faithann Jessop, et al. (No. 03-08-00236-CV).

Before you rush to criticize this decision, consider the reason the court of appeals gave for it.

The court explained that the application for emergency relief complained about a two-page order signed on April 22 and alleged that this order failed to comply with Section 262.201 of the Family Code.  Following its own investigation, however, the appellate court learned that the district court had, on April 21, signed an eight-page Temporary Order Following Adversary Hearing and Notice of Hearing, which the relators neither referenced in nor attached to their emergency motion.  The April 21 order "makes explicit findings with respect to the requirements of section 262.201, temporary conservatorship of the children, possession of and access to the children, temporary child support, temporary medical support, access to medical records, the acquisition of information regarding alternate caregivers who are relatives of the children, and the best interest of the children."

The court of appeals concluded that the April 21 order, "on its face, addresses statutory requirements" and based its denial of temporary relief on that conclusion.  Whether the order—which requires the children to remain in the possession of the Department of Family and Protective Services—"is supported by sufficient evidence, is the product of a sufficient "full adversary hearing" as required by section 262.201, or is an abuse of discretion are questions for determination on the merits of Relators' Petition for Writ of Mandamus."

Moral:  When presenting a motion for temporary emergency relief to an appellate court, be sure and tell the whole story, not selected parts of it.  I don't know if the relators intentionally omitted the April 21 order or just made a mistake—I'm hoping the latter—but an appellate court's discovery that you have omitted significant or potentially dispositive facts can only harm your client.

• Email This
• Print
• Comments (4)
• Trackbacks (1)

It turns out that Tuesday's post about FLDS appeals coming to Austin was timely.  According to this press release and what I can gather from the Third Court of Appeals' web site, lawyers for Texas RioGrande Legal Aid filed a mandamus petition yesterday asking the court to order District Judge Barbara Walther to hold hearings at which each family would be able to respond to allegations of abuse before the children are placed in foster care in locations throughout the state.

A panel consisting of Chief Justice Law and Justices Pemberton and Waldrop will hear argument in In re Sara Steed, et al. (No. 03-08-00235-CV) on April 29 at 2:00 p.m.  The house should be packed.

Update:  The Supreme Court of Texas Blog and a commenter to this post point out that the order setting argument is addressed to the motion for temporary relief, rather than the mandamus petition itself.  It's an unusual development for an extraordinary case.

4/25/08 Update.  The oral argument has been canceled.  The court has taken no action on the mandamus petition.

• Email This
• Print
• Comments (3)
• 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.

• Email This
• Print
• Comments (2)
• Trackbacks

The Texas Supreme Court handed down six decisions with this week's orders.

In Mid-Century Insurance Co. v. Ademaj (No. 05-0016), a declaratory judgment action, the Court held that insurers may lawfully collect Texas Automobile Theft Prevention Authority fees from auto insurance policyholders without including such fees in rate filings required under Article 5.101 of the Insurance Code.  Because the trial court and court of appeals concluded otherwise, the supreme court reversed and rendered judgment that plaintiff take nothing.  Justice O'Neill (joined by Justice Medina) issued a concurring opinion.

In Houston Municipal Employees Pension System v. Ferrell (No. 05-0587), the Court held that 29 members of the Pension System could not bring a declaratory judgment action to adjudicate their rights under the statute that created the System.  Because the statute expressly provides that the administrative agency's interpretation is "final and binding on any interested party," the Court held that the trial court lacked jurisdiction over the case, reversed the court of appeals' judgment, and dismissed for want of jurisdiction.  Justice Brister (joined by Justice O'Neill) concurred.

In Montgomery County, Texas v. Park (No. 05-1023), the Court defined an "adverse" personnel action under the Texas Whistleblower Act (which provides no definition) as one that "would be likely to dissuade a reasonable, similarly situated worker from making a report under the Act."  Concluding thatplaintiff failed to meet that definition, the Court reversed the court of appeals' judgment and rendered judgment for the County.

In Ogletree v. Matthews (No. 06-0502), the Court determined that a defendant in a health-care liability action has no right to an immediate interlocutory appeal when the trial court denies a motion to dismiss and grants the claimant a 30-day extension of time to cure defects in otherwise timely served expert reports.  Because the court of appeals reached the same conclusion, the supreme court affirmed the lower court's judgment.  Justice Willett delivered a concurring opinion.

In Best Buy Co. v. Barrera (No. 07-0028) (per curiam), a class action in which plaintiffs sought return of restocking fees, the Court followed its recent decision in Stonebridge Life Insurance Co. v. Pitts andconcluded that individual issues will predominate over common issues of proof.  Holding that plaintiffs thus failed to satisfy TRCP 42(b)(3)'s predominance requirement, the Court reversed the court of appeals' judgment affirming the class-certification order and remanded the case to the trial court.

In In re McKee (No. 06-0055) (orig. proceeding) (per curiam), the Court denied a mandamus petition seeking to invalidate an administrative judge's assignment of one trial judge to hear a recusal motion involving another trial judge when the administrative judge had previously recused himself from the case.  Noting that it had previously declined mandamus relief from the denial of a recusal motion, the Court applied the updated Prudential standard and concluded that there would be no significant benefit to granting relief in this case.

• Email This
• Print
• Comments
• Trackbacks

The Texas Supreme Court issued four opinions with this week's orders.

In In re U.S. Home Corp. (No. 03-1080) (per curiam), a dispute between a homebuilder and purchasers, the Court conditionally granted mandamus relief from a trial court order refusing to compel arbitration, holding that no evidence supported any of the asserted defenses to enforcement of the arbitration clause.  The Court declined the defendants' invitation to reverse the trial court's class certification order because the court of appeals had not yet ruled on that request.

Answering certified questions from the Fifth Circuit in Mid-Continent Insurance Co v. Liberty Mutual Insurance Co. (No. 05-0261), the Court held under the facts of the case that one insurer owed a second insurer no duty (directly or by subrogation) to compensate the second insurer for paying more than its proportionate share of a settlement to which both contributed.  Justice Willett delivered a concurring opinion providing his additional thoughts on why Texas law should not recognize such a claim.

In In re SCI Texas Funeral Services, Inc. (06-0385) (per curiam), the Court conditionally granted mandamus relief from discovery and sanctions orders in a putative class action because the court of appeals' reversal of class certification "render[ed] the class-wide discovery superfluous and the class-wide sanctions incongruous."

In BFI Waste Systems of North America, Inc. v. North Alamo Water Supply Corp. (No. 06-0602) (per curiam), the Court denied both petitions for review, but indicated that the court of appeals (in footnote 6 of its opinion) had improperly commented on the validity of a discharge permit, an issue not before that court.  The supreme court agreed with petitioners' argument that the court of appeals' comments should not prejudice future litigation over the discharge permit.

• Email This
• Print
• Comments
• Trackbacks

The Texas Supreme Court ended its summer recess with a bang by issuing seven opinions today.

In In re H&R Block Financial Advisors, Inc., the per curiam Court conditionally granted mandamus relief from a trial court's order refusing to stay the plaintiffs' lawsuit in light of an arbitration clause.  The Court rejected the plaintiffs' attempts to avoid arbitration with their investment advisor and his firm over Enron-related losses because the firm had changed its name and because the advisor did not sign the investment agreements in his personal capacity.

In In re Merrill Lynch Trust Co., the Court conditionally granted mandamus relief and compelled arbitration against employees of the entity with whom plaintiffs agreed to arbitrate, but not affiliates of that entity.  With respect to the employee, the Court reasoned that the substance of plaintiffs' lawsuit was against the signatory, even though it was not named as a party, and that the signatory would be liable for the employee's torts.  Regarding the affiliates, the Court rejected "an estoppel theory based on substantially interdependent and concerted misconduct" as a basis for imposing an obligation to arbitrate upon a nonsignatory, even though the case was governed by the Federal Arbitration Act and the Fifth Circuit has recognized such a theory.  Justice Hecht (joined by Justice Medina and in part by Justice O'Neill) and Justice Johnson (joined by Justice Wainwright) each issued opinions concurring and dissenting.

In Energy Service Co. v. Superior Snubbing Services, Inc., the Court held that a Worker's Compensation-subscribing employer's agreement to indemnify a person and that person's contractors was an agreement with the contractors for purposes of the Worker's Compensation Act, as amended in 1989.  Justice Johnson (joined by Justices Wainwright, Green, and Willet) dissented.

In Fort Worth Independent School District v. Service Employment Redevelopment, the per curiam Court continued the trend of remanding breach-of-contract cases against governmental entities to allow plaintiffs to argue that the legislature waived sovereign immunity under new Sections 271.151-.160 of the Local Government Code.

In Gaines v. Kelly, a no-evidence summary judgment case, the Court held that the borrower/plaintiff presented no evidence that a mortgage broker had apparent authority to bind a lender and therefore rendered judgment that the plaintiff take nothing on the borrower's claim against the lender based on the mortgage broker's alleged misrepresentations.

In In re Kaplan Higher Education Corp., the per curiam Court conditionally granted mandamus relief from a trial court's order refusing to compel arbitration under an agreement between a vocational college and 45 of its students, even though the students had dropped their direct claims against the college and were asserting claims against only the president and admissions director, because the substance of the action was fraudulent inducement and because the college would have been liable for the judgment under the Education Code and common law.

The following statement from Elledge v. Friberg-Cooper Water Supply Corp. (per curiam) says it all:  "We reject the court of appeals' 'obiter dictum' label.  Our statements that the two-year statute [of limitations, rather than the four-year statute] applies to unjust enrichment claims, though not essential to the outcomes in HECI [Exploration Co. v. Neel, 982 S.W.2d 881 (Tex. 1998)] and Wagner & Brown, [Ltd. v. Horwood, 58 S.W.3d 732 (Tex. 2001)], should have been followed."

Ouch!

• Email This
• 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.

• Email This
• Print
• Comments
• Trackbacks

With last week's orders, the Texas Supreme Court decided five cases, four of which involved per curiam opinions.

In Goodyear Tire & Rubber Co. v. Mayes, the Court concluded that the plaintiff failed to raise fact issues sufficient to preclude summary judgment.  Reversing a divided court of appeals for failure to apply the proper standard of review, the Court rendered judgment that the plaintiff take nothing.

In In re Allied Chemical Corporation, a divided Court conditionally granted mandamus relief to defendants in a mass-tort case set for trial even though the plaintiffs had never identified medical experts who could connect their diseases to the defendants' products.  The Court determined that the trial setting was premature and that mandamus was appropriate (1) to avoid a "monumental waste of judicial resources," (2) because the trial setting effectively denied discovery going to the heart of the defendants' case, and (3) because the setting severely compromised the defendants' ability to present any case at all at trial.  Justice Hecht concurred, and Chief Justice Jefferson (joined by Justices O'Neill, Wainwright, and Johnson) and Justice Wainwright each issued dissenting opinions.

In Kallam v. Boyd, theCourt withdrew its previous order granting the defendants' petitions and denied the petitions as improvidently granted because the plaintiff died shortly before oral argument.  Under the circumstances, the Court decided not to address the constitutional issue on which the court of appeals' decision turned:  whether the Texas Constitution's Open Courts provision precluded application of the statute of limitations to bar claims before the plaintiff reasonably could have discovered them.

In Brinson Ford, Inc. v. Alger, the Court held that the plaintiff, who fell from a pedestrian ramp at an auto dealership, presented no evidence of a premises condition posing an unreasonable risk of harm.  The Court reversed and rendered judgment for the dealership.

In In re Allstate County Mutual Insurance Co., the Court conditionally granted mandamus relief to an insurer and agent bombarded with a total of 213 discovery requests (89 requests for production, 59 interrogatories, and 65 requests for admission) in a third party car-wreck case.

• Email This
• Print
• Comments (1)
• 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.

• Email This
• 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.

• Email This
• Print
• Comments (3)
• Trackbacks

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.

• Email This
• Print
• Comments
• Trackbacks

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.

• Email This
• Print
• Comments
• Trackbacks

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.

• Email This
• Print
• Comments
• Trackbacks