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

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.

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In In re Steed (No. 03-08-00235-CV) (orig. proceeding) (per curiam), the Third Court of Appeals has conditionally granted the petition for writ of mandamus and vacated the district court's order placing more than 400 FLDS children in state custody.  The Supreme Court of Texas Blog, the ABA Journal, and other media outlets are reporting additional details.

Chief Justice Law, Justice Pemberton, and Justice Waldrop made the decision, but we don't know who wrote the opinion.  It's difficult to criticize deciding this case per curiam, given its  highly politicized and controversial subject matter and the national publicity it has received.

Update:  On closer examination, the Third Court's ruling in In re Steed does not purport to return all the FLDS children in CPS custody, only those belonging to the 38 relators in that proceeding.  The court reached the same result in a related case, In re Bradshaw (No. 03-08-00298-CV), also issued per curiam, which involved three additional relators.

After these orders, however, CPS would presumably change course on all the affected children.

A third case involving three more relators, In re Jessop (No. 03-08-00236-CV), remains pending.

5/23/08 Update:  Per coverage at CNN.com and the Salt Lake Tribune, the State is taking the matter up to the Texas Supreme Court.  The Deseret News posted unsigned PDFs of the mandamus petition and motion for emergency relief apparently filed today.

5/24/08 Update:  Per the Supreme Court of Texas Blog, the response to the State’s motion, the Court’s docket sheet, and a page with the electronic versions of the briefs (which should be updated when any further briefs are filed) are now available through the Texas Supreme Court's web site.

Given the present uncertainty, I have added a question mark to the title of this post.

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The Texas Supreme Court issued one opinion with today's orders.  In In re D.N.C. (No. 07-0621) (per curiam), a family law case consolidated with four others involving the same parent, the Court explained its denial of the Department of Family and Protective Services' petitions for review.  The Department contended that the court of appeals' reversal of a conservatorship order and a conservatorship appointment on factual insufficiency grounds was erroneous under the Court's recent decision in In re J.A.J., (No. 07-0511), previously discussed here.

In J.A.J., the Court held that an appellant whose parental rights have been terminated must specifically assign error to the Department's appointment as conservator, not just to the termination decision.  Unlike J.A.J., however, the trial court in D.N.C. made no specific findings to support the conservatorship appointment.  Because "the only available statutory mechanism for the Department's appointment was as a consequence of the termination pursuant to [Family Code] section 161.207," the supreme court held that J.A.J. did not apply and allowed the court of appeals' complete reversal to stand.

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As promised, here are some very brief summaries of the latest Texas Supreme Court opinions.

In In re Pirelli Tire, L.L.C. (No. 04-1129) (orig. proceeding), a case brought by non-U.S. residents, the Court held that the trial court abused its discretion by denying a motion to dismiss based on forum non conveniens.  The Court relied on the private and public interest factors set out in Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947) and held that they "clearly and overwhelmingly favor a Mexican forum for resolution of this dispute."  The Court further held that the "[e]rroneous denial of an forum-non-conveniens motion . . . cannot be adequately rectified on appeal."  Justice Willett (joined by Justice Wainwright) issued a concurring opinion, and Justice Johnson (joined by Chief Justice Jefferson) dissented.

In both Springer v. Springer (No. 06-0382) (per curiam) and Sprowl v. Payne (No. 06-0533) (per curiam), the Court held that dismissal of an appeal was improper even though the appellant failed to either pay the filing fee or file an affidavit of indigence "with or before" the notice of appeal as TRAP 20.1(c)(1) requires.  Relying on TRAP 44.3, the Court reversed the court of appeals' judgment of dismissal in both cases, concluding that "failure to file an affidavit of indigence 'with or before' a notice of appeal will not support dismissal unless the appellant is given a reasonable time to correct the defect and fails to do so."

In Knapp Medical Center v. De La Garza (No. 06-0575) (per curiam), the Court held that TRCP 11 barred enforcement of a disputed oral settlement agreement reached during trial.

In Bossier Chrysler-Dodge II, Inc. v. Rauschenberg (No. 06-0874) (per curiam), the Court reversed and remanded the case to the court of appeals in light of Barker v. Eckman, 213 S.W.3d 306 (Tex. 2006), which held that the issue of attorney's fees should ordinarily be retried when damages are significantly reduced on appeal.

In In re J.A.J., (No. 07-0511), the Court held that an appellant whose parental rights have been terminated must specifically assign error to the Department of Family and Protective Services' appointment as conservator.  If the parent appeals only the termination decision, any error in the conservatorship appointment is waived.

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In Wolk v. Wolk, the Third Court of Appeals has reversed a no-answer default divorce decree challenged in a restricted appeal, holding that error was apparent on the face of the record because the plaintiff presented no evidence identifying, describing, and valuing community assets awarded in the decree.  Without this evidence, the trial court could not have divided the community estate in a manner that was "just and right" under Texas Family Code § 7.001.  Accordingly, the appellate court reversed the decree and remanded the case for a new trial on the issues appellant raised, which also included child support and attorney's fees.

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In Kennedy v. Plan Administrator for DuPont Savings & Investment Plan, the Fifth Circuit has held that ERISA trumped a divorce decree purportedly divesting an ex-spouse of her interest in any "retirement plan, pension plan, or like benefit program existing by reason of [decedent's] employment."  The decedent never removed his ex-wife as the designated beneficiary, and the decree did not meet the requirements of a "qualified domestic relations order" under ERISA.  Therefore, the decree did not trigger an exception to the statute's "anti-alienation provision," which prohibits assignment or alienation of benefits provided under an employee pension benefit plan.  The ex-spouse collected about $400,000 because of this mistake.

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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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In Goodson v. Castellanos, the Third Court of Appeals has rejected a collateral attack on a 2003 Bexar County decree granting a child's adoption by two same-sex parents.  After considering appellant's contention that the adoption decree was void because state law prohibits same-sex adoptions, the Court concluded that the decree could not be attacked collaterally because Texas Family Code § 162.012 prohibits all challenges to an adoption decree filed more than six months after the order is signed.

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In In re C.S., the Third Court of Appeals has held that an ad litem's request for an injunction to remove "unconconstitutional barriers" to an adoption by increasing subsidies was really "an attempt to force the State to pay money to [the prospective adoptive parents] that the State is not willing to pay on its own volition."  Because the State is immune from suits for money absent legislative consent, the Third Court reversed the trial court's denial of the State's plea to the jurisdiction and rendered judgment dismissing the claim.

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