The Texas Supreme Court issued no opinions with this week's short set of regular Friday orders. The Court has been quite productive lately, as a number of the justices have mentioned at various bar functions, though several cases have been decided per curiam and merely follow a signed opinion on a particular issue. The word remains that some long-pending cases will be resolved soon.
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.
The Court is accepting public comments on the proposed changes through June 30, 2008. The amendments, with any changes, will take effect September 1.
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.
The Texas Supreme Court made up for what had been a slow March by issuing an incredible 20 decisions with this week's orders. Timely posting links for each opinion—much less any meaningful analysis—would be unwieldy given my current schedule. PDFs of the opinions are available here.
Update: Click on this link for Osler McCarthy's summaries.
Last night, the web version of the San Antonio Express-News ran a commentary by Osler McCarthy, the Texas Supreme Court's Staff Attorney for Public Information, addressing watchdog groups' recent claims regarding alleged ethics violations and docket backlog. McCarthy gives another view based primarily on official Court statistics, and he makes some interesting points. Those following these stories should take into account what he says.
3/28/08 Update: Sophisitic Miltonian Serbonian Blog and The Supreme Court of Texas Blog provide further analysis.
3/30/08 Update: Texas Watch spokesman Alex Winslow responds to McCarthy here.
This debate seems to have hit a dead end. I'll follow up again only if there's something new.
A blog associated with The Dallas Morning News and KVUE-TV here in Austin have both run new stories on the Texas Supreme Court's "backlog problem." As near as I can tell, neither has unearthed any previously unreported information, so the timing is something of a mystery. Yesterday's blog entry refers to a Texas Watch report issued February 20, and this evening's KVUE broadcast shows some of the same footage used in the WFAA-TV story (discussed here) from February 27. Political rehash, anyone?
The Appellate Sections of the State Bar of Texas and the Austin Bar Association are sponsoring a program entitled “An Evening with the Texas Supreme Court” on Thursday, March 27, 2008, from 4:30 to 7:00 p.m. at the InterContinental Stephen F. Austin Hotel here in Austin. CLE credit (1.5 hours, .33 ethics) has been requested.
The event will feature a panel discussion with Chief Justice Jefferson and Justices Brister, Johnson, and Willet. A reception with the justices will follow.
Register by mailing a $25 check payable to “State Bar of Texas Appellate Section” to Anne Johnson at Haynes and Boone, 901 Main Street, Suite 3100, Dallas, Texas 75202. You may also reserve a space by calling Anne at (214) 340-7974 or by e-mailing her at anne.johnson@haynesboone.com, with $30 payable at the door.
The Texas Supreme Court issued one opinion with this week's orders. In El Paso Hospital District v. Texas Health & Human Services Commission (No. 05-0372), the Court granted the District's motion for rehearing, withdrew the opinion issued on August 31, 2007, and substituted another in its place.
In both instances, the Court held that HHSC's February 28 cutoff for gathering data for Medicaid patients was an agency rule and, because HHSC did not follow proper rule-making procedures, declared the rule invalid. Originally, the Court "remanded the rule to [HHSC ] for further action." But the Court acted more decisively in the opinion on rehearing,"revers[ing] the court of appeals' judgment and render[ing] judgment declaring the rule invalid and enjoining its enforcement."
In light of its new disposition, the Court remanded the case to the trial court for further proceedings, specifically a review of individual claims data excluded by the February 28 cutoff.
Of all the Texas Supreme Court decisions issued last week, Fairfield Insurance Co. v. Stephens Martin Paving, LP (04-0728) is arguably the most significant. In that case, the Court answered "no"—sort of—to the Fifth Circuit's certified question, "Does Texas public policy prohibit a liability insurance provider from indemnifying an award for punitive damages imposed on its insured because of gross negligence?"
More accurately, the Court reframed the question narrowly and answered it this way: "Pursuant to article V, section 3-c of the Texas Constitution and rule 58.1 of the Texas Rules of Appellate Procedure, we answer that Texas public policy does not prohibit coverage under the type of workers' compensation and employer's liability insurance policy at issue in this case."
That answer begs the question, "How about other types of insurance policies?" More on that in a minute.
Citing three out-of-state cases, the Court first described a two-step analysis for determining whether exemplary damages are insurable. The Court decides (1) whether the policy's plain language covers the exemplary damages sought in the underlying suit against the insured; and (2) if so, whether Texas public policy allows or prohibits coverage under the circumstances, considering any express statutory provisions regarding the insurability of exemplary damages.
The Court skipped the first part of its newly announced analytical standard and proceeded to the second step. After reviewing the relevant statutes, the Court concluded that "[t]he Legislature's expressed intent is that Texas public policy does not prohibit insurance coverage for claims of gross negligence in this context."
That's it. Certified question answered. Opinion over at page 10, right?
Wrong. This is where it gets interesting—so much so as to spark concurring opinions from Justice Hecht and Justice Johnson.
Recognizing "the import of this issue," the Court went on to discuss the "considerations relevant to determining whether Texas public policy prohibits insurance coverage of exemplary damages in other contexts in the absence of a clear legislative policy decision." What follows over the next 17 pages is an impressively researched explication of how every other state has treated the issue, as well as a discussion of key cases outlining both sides of the debate and the critical policy concerns: freedom of contract and whether, based on the specific circumstances, the purpose of imposing exemplary damages is served.
Folks who were hoping for ultimate resolution of whether punitive damages are insurable in Texas are undoubtedly disappointed. Although the Court said more than was needed to answer the Fifth Circuit's certified question, it stopped well short of adopting a bright-line rule. Indeed, just about everything other than worker's compensation coverage remains open for further debate under the framework announced in this case.
The following chart from the Houston Chronicle depicts how long argued cases have been pending before the Texas Supreme Court and the number of deciding opinions each of the justices wrote in Fiscal Year 2007. Though intended to expand on recent controversies, it provides some perspective nonetheless.
The Texas Supreme Court has been productive despite all the recent controversy (WSJ Law Blog coverage here and here), churning out eight decisions with this week's orders. The cases involved fraud claims, annexation, land titles, improper jury argument, apex depositions, governmental immunity, potential waiver of the right to appeal, and election law. Osler McCarthy's excellent summaries are available via this link.
Austin appellate lawyer Don Cruse recently launched the Supreme Court of Texas Blog, which is definitely worth checking out if you haven't seen it yet. Don covers some of the same ground I do, but his focus is narrower and deeper. I have added a link to his blog under the "Texas Law Blogs" section of my blogroll. Welcome to the blogosphere, Don. There's room here for both of us.
The Texas Supreme Court issued no opinions with this week's orders. In other Court news, however, Chief Justice Jefferson has issued a statement expressing the Court's dismay concerning Justice Medina's indictment in Harris County in connection with the fire that destroyed his Houston-area home last summer. Several news outlets have reported that Harris County District Attorney Chuck Rosenthal (Justice Medina's fellow Republican, who is having his own well publicized troubles these days) will move to dismiss the indictment. The political firestorm (no pun intended) has begun.
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.
I spoke at the Austin Bar Association's monthly members-only CLE luncheon this past Friday. My topic was "Texas Supreme Court Update: Developments Since Summer Recess." With permission, I used a paper Dylan Drummond wrote and added other recent developments by inserting relevant posts from this blog at the end. If anyone is interested, a copy of the paper is available here.
Following up on this post, about 300 Texas lawyers have petitioned the Court of Criminal Appeals to adopt a rule permitting the e-filing of petitions, motions, and other documents in death penalty cases. (UPDATE: Per this news report, the CCA has agreed to allow e-mail filingfor emergency motions in death penalty cases and other "extraordinary matters.")
As mentioned here, the Texas Supreme Court allows parties to e-mail documents in emergency situations, although it doesn't consider them filed until it receives paper copies. Change is on the horizon, however, as the state legislature appropriated $2.3 million in the current budget cycle for the State Office of Court Administration to start working on the Texas Appeals Management and E-Filing System. As with anything government-related, it won't happen quickly, but it will happen.
(Hat tip to the Tex Parte Blog.)
The Texas Supreme Court issued one opinion with today's orders. In Yancy v. United Surgical Partners Inc. (05-0925), a summary judgment case, the Court held that the two-year statute of limitations in the former Medical Liability Act did not violate the Texas Constitution's open courts guarantee on the record presented. Although the Court concluded that the court of appeals erred because the record contained some evidence of continuous mental incapacity, it nevertheless affirmed after concluding that the petitioner failed to raise a "fact issue establishing that [petitioner] did not have a reasonable opportunity to discover the alleged wrong and bring suit within the limitations period or that she sued within a reasonable time after discovering the alleged wrong. Thus, the open courts provision does not save [petitioner's] time-barred negligence claims."
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I don't practice criminal appellate law, and I don't ordinarily follow the the Texas Court of Criminal Appeals, but even I notice when the CCA makes front-page news for the wrong reasons.
In case you haven't heard, the media is lambasting the CCA (more specifically, Presiding Judge Sharon Keller) for refusing to keep the clerk's office open past 5:00 to accept a last-minute filing in a death penalty appeal. Earlier the same day, the U.S. Supreme Court granted certiorari in a Kentucky case challenging lethal injections as cruel and unusual punishment, and Texas death row inmate Michael Richard was scheduled to die by lethal injection that evening. The media coverage provides the details, but because of Presiding Judge Keller's decision, the Richard execution went forward without the possibility of court intervention on potentially meritorious grounds.
The Texas Supreme Court doesn't make life-or-death decisions, and it is receiving its share of negative press these days. But one of the things that court does right is allow electronic or after-hours submissions (with an advance call to the clerk's office, as apparently occurred in the Richard case) to get emergencies in front of the Court when its decisions can still make a difference. One would think that if a civil court can accommodate litigants when money is the only thing at stake, a criminal court could do the same in matters of life and death.
Within the past couple of weeks, I have been contacted by two different lawyers about their clients' respective appeals, both of which appear to be on a collision course with the Texas Supreme Court. Sounds promising, right? Not so fast.
Rather than calling to discuss hiring me to handle their matters, both lawyers wanted me to recommend someone "politically connected" (i.e., someone with a firm that is a big financial contributor to the individual justices' electoral campaigns) to take over the proceedings.
I don't blame these folks for calling. They are merely doing what they think is in their clients' best interest. But what does this say about lawyers' confidence—not to mention the public's—in our elected judiciary? It's more important to hire someone who has given large sums to political campaigns than someone qualified to do the job (and, in my case, as a sole practitioner with much lower overhead than the "politically connected" firms, do it at a considerably more favorable rate).
Chief Justice Jefferson has tried to pick up the mantle of judicial selection reform and carry on the fight started by his immediate predecessors. The legislature keeps saying no. Don't give up, Chief. Don't give up.
The Texas Supreme Court issued four opinions with today's orders.
In National Plan Administrators, Inc. v. National Health Insurance Co. (No. 05-0006), the Court held that a third-party administrator did not owe a general fiduciary duty to an insurer in light of the parties' agreement and certain provisions in the Insurance Code. The Court therefore reversed the court of appeals' judgment affirming a monetary awardand rendered judgment that the insurer take nothing.
In Texas Parks & Wildlife Department v. E.E. Lowrey Realty, Ltd. (No. 05-0157) (per curiam), the Court applied its recent decision in Texas A&M University System v. Koseoglu, 233 S.W.3d 835 (Tex. 2007) and held that Government Code § 51.014(a)(8) provided the court of appeals with jurisdiction to consider the appeal of Department employees named as codefendants in the suit. Reversing the court of appeals' judgment, the Court dismissed the plaintiff's claims against the employees and the Department after concluding that they were incurably defective and therefore should not be remanded.
In A.G. Edwards & Sons Inc. v. Beyer (No. 05-0580), the Court rejected the contention that Probate Code § 439(a) barred the plaintiff's breach of contract claim against A.G. Edwards and affirmed the court of appeals' judgment affirming a $791,200 jury verdict. However, the Court reversed and remanded for a new trial on attorney's fees because the plaintiff failed to segregate fees between her breach of contract and tort causes of action.
In Lamesa Independent School District v. Booe (No. 05-0959) (per curiam), the Court reiterated its holding in Satterfield & Pontikes Construction, Inc. v. Irving Independent School District, 197 S.W.3d 390 (Tex. 2006) that Education Code § 11.151(a) is not a clear and ambiguous waiver of sovereign immunity. Because the court of appeals determined otherwise, the supreme court reversed and remanded the case to the court of appeals to consider issues it did not reach.
The Texas Supreme Court issued no opinions with today's orders. Interestingly, the Court denied the motion to recuse filed in In re Columbia Medical Center, Subsidiary, L.P. (No. 06-0416) (previously discussed here and here), which reportedly had been set for oral argument with the mandamus petition next Thursday.
UPDATE: The Court's spokesman, Osler McCarthy, has confirmed that reports of a hearing on the Columbia motion were mere rumors. Accordingly, I have taken down today's earlier post on that subject. Ugh!
The Texas Supreme Court issued no opinions with this week's orders. Hmmmm. Maybe I'll start the weekend early . . . .
Appellate geeks like me are already interested in In re Columbia Medical Center, Subsidiary, L.P. (No. 06-0416), a case in which the Texas Supreme Court will re-examine whether a trial court's decision to grant a new trial is reviewable by mandamus. (Oral argument is set for September 27.) But the real parties in interest have filed a recusal motion that will lift more than a few eyebrows. Texas Lawyer provides the details here.
The Texas Supreme Court has added links to its calendar (in Microsoft Word and PDF form) as a new feature on the Court's web site. Advocates and others now have ready access to the Court's schedule through August 2008, including dates for oral argument, conference, orders, and holidays.
Thanks to Elana Einhorn for the tip.
After a very busy couple of weeks, the Texas Supreme Court released one opinion with today's orders. In Texas A&M University System v. Koseoglu, the Court held that a plaintiff who, due to pleading defects, loses a plea to the jurisdiction based on sovereign immunity is not entitled to a remand when amending the pleading could not cure the defects. The Court also determined that Civil Practice and Remedies Code § 51.014(a)(8) vests appellate courts with jurisdiction to decide a government official's appeal from the denial of a plea to the jurisdiction based on immunity.
Well, the long weekend and resulting short week caught up to me, and it turns out that I won't be able to post summaries of the most recent Texas Supreme Court decisions as intended. The fact that I am attending the Advanced Appellate Seminar here in Austin tomorrow and Friday hasn't helped that cause. If things slow down, I may write about some of the individual cases. In any event, Osler McCarthy's excellent summaries are available here.
The Texas Supreme Court has released a slew of 13 opinions with today's orders, exceeding last week's unexpectedly large total by five. These will take some time to review and digest. In the meantime, PDFs of all the new opinions are available here.
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!
The Texas Supreme Court issued no opinions with this week's orders, signaling the beginning of the Court's "summer recess." From what I understand, the Court will not issue regular orders again until late August.
The Texas Supreme Court appears to be racing to push opinions out before taking its summer break. The Court issued seven decisions with last week's orders, including one mandamus and two per curiam opinions. In the interest of time, I am posting a link to Osler McCarthy's thorough summaries here.
The Texas Supreme Court issued a single per curiam decision with today's orders.
In Schaub v. Sanchez, the Court held that a patient's mere lack of consent to a medical procedure did not support a cause of action for lack of informed consent under the former Medical Liability Act (now codified at Chapter 74 of the Civil Practice and Remedies Code) because that statute applies only if a doctor negligently fails to disclose the procedure's risks or hazards to the patient. Here, the plaintiff did not complain that she was unaware of the risks or hazards; indeed, she had undergone the same procedure twice before. The plaintiff might have had a battery or negligence claim, but those claims were dismissed by agreed order and were not before the Court. Accordingly, the Court rendered judgment that the plaintiff take nothing.
I am recovering from working on a major case that has taken nearly all my time for the past two months, but will be getting back into the swing soon. In the meantime, here is a PDF of Osler McCarthy's summaries of the opinions issued with last week's Texas Supreme Court orders. If the past few weeks are any indication, we can expect a number of new decisions between now and when "summer recess" begins (typically around July 4).
The Texas Supreme Court issued several opinions with this week's orders. For details, check out Osler McCarthy's excellent summaries, which I am posting in PDF here.
At the risk of sounding like a broken record, the Texas Supreme Court issued no opinions with today's orders.
The following guest post comes from Dylan Drummond of Godwin Pappas Ronquillo LLP in Dallas:
Today, the sole SCOTX opinion issued on this morning's orders happens to be the third authored opinion in the case of F.F.P. Operating Partners, L.P. v. Duenez, making the opinion in this case perhaps the most revised in the history of the Court. The distinction between this line of cases and the four Edgewood school finance opinions is that the Edgewood plaintiffs brought separate suits challenging successive Legislative solutions to Texas system of school finance, while Duenez has been revised three times on the same underlying facts. The latest entry in the Duenez saga appears to merely make more precise some of the language from the Nov. 3, 2006 iteration, without altering the substantive holding of the original (or intermediate, as it were) opinion. The main thrust of the revision appears to be this passage:
Dram shops are liable if they provide alcoholic beverages to an individual that is obviously intoxicated to the extent that he presents a clear danger to himself and others, and the intoxication of the patron was a proximate cause of the injuries. Tex. Alco. Bev. Code 2.02(b). These requirements were promulgated by the passage of the Act in 1987. In this case, we hold that dram shops are responsible for the proportion of damages they cause or contribute to cause, as set forth in the Proportionate Responsibility Act. Tex. Civ. Prac. & Rem. Code § 33.003.
It is interesting to speculate, however, what briefing prompted the Court to take such a drastic measure as to re-issue an opinion it had already disposed of twice (holding differently both times). The Court's docket shows that the Motion for Rehearing and an Amicus letter were the only documents filed between the Court's Nov. 3 intermediate opinion and today's revision. Judging by the Court's action today, either or both documents must have been particularly persuasive.
I'm going to have to crib from Osler McCarthy's notes for a few more weeks, especially if the Texas Supreme Court continues pushing opinions out at the rate in this week's orders. His summaries are posted here.
Contact Osler directly if you'd like to get on his e-mail list. He provides a great service to appellate practitioners and others who follow the Court.
The Texas Supreme Court issued four opinions with this week's orders. I am still tied up on a large matter, but Osler McCarthy, the Court's staff attorney for public information, has granted me permission to "borrow" his detailed summaries. I am posting them here.
Judging from today's orders, it's been a very busy week at theTexas Supreme Court. Having just returned from out of town, I'm not sure I'll be able to provide the usual links and synopses, at least not right away. I'm glad to be busy, but my blogging is suffering for it.
The Texas Supreme Court issued no opinions with this week's orders.
The Texas Supreme Court denied one petition for review and issued one per curiam opinion this week with what must be close to the shortest set of orders ever issued. The Court issued the orders on Thursday, instead of the usual Friday, because of the Good Friday holiday.
In State of Texas v. Precision Solar Controls Inc., another in a long series of soveriegn immunity cases, the Court held that the plaintiff should have an opportunity to establish waiver in light of the "new" opinion in Reata Construction Corp. v. City of Dallas. In its one-paragraph analysis, the Court stated:
The court of appeals relied on our first opinion in Reata Construction Corp. v. City of Dallas, which we have since withdrawn and replaced. 197 S.W.3d 371 (Tex. 2006). We held that a governmental entity that brings an action waives immunity from suit for claims that are germane to, connected with, and properly defensive to its action, to the extent of an offset. Id. at 373. The State argues that it has not by its action waived immunity for an intentional tort claim like Precision's. Such arguments should be further considered by the lower court in light of Reata.
The supreme court vacated the court of appeals' judgment and remanded the case to the trial court for further proceedings.
In its occasional efforts to "ride the circuit," the Texas Supreme Court will hear arguments tomorrowApril 12 at Austin College in Sherman, Texas. The arguments are part of the fourth annual Austin College Law Symposium. No video webcast will be available.
Source: Osler McCarthy, Staff Attorney for Public Information.
UPDATE: Thanks to Osler for pointing out my mistake on the date, which is corrected above.
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.
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.
The Texas Supreme Court issued no opinions with today's orders. Could it be that the Court is distracted by the SB 1204 debate?
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!
The Texas Supreme Court released no opinions with today's relatively short set of orders. Courts around Austin have been slow this week, which just happens to be the local school districts' Spring Break.
