Reverse and Render : Texas Appellate Lawyer & Attorney : Cowles & Thompson Law Firm : Court of Appeals, Texas Supreme Court

The Texas arbitration statutes contemplate that a trial court has jurisdiction to issue an injunction in support of an arbitration.  So what happens if the trial court issues a temporary injunction but the form of the injunction does not (and cannot) comply with Rule 683?  According to the Dallas Court of Appeals, Rule 683 takes a backseat to the Texas Arbitration Act.

Senter Investments, L.L.C. v. Veerjee, involves an interlocutory appeal from a temporary injunction order.  The parties to the appeal had a lease agreement that required them to arbitrate, but the Veerjees asserted that there was a breach of the agreement when Senter entered into a contract with a third party to sell the property without first giving the Veerjees a right of first offer.  For that reason, the Veerjees sought and obtained a temporary injunction to halt the sale.  The trial court also ordered the parties to arbitrate pursuant to the arbitration clause in the lease agreement.  In its interlocutory appeal, Senter challenged the injunction as void because Rule 683 requires an injunction order to set a date for trial on the merits.

The court of appeals held that Rule 683's trial-setting requirement would conflict with the Texas Arbitration Act and that the Texas Arbitration Act must prevail over court rule.  Interestingly, the court also refused to address any of the merit-based challenges to the temporary injunction on the ground that doing so would constitute an advisory opinion, which is prohibited.  The court's opinion scolds the parties for having done nothing toward filing and pursuing the arbitration ordered by the trial court.  One question that is raised by this opinion (and the predecessor opinions cited within it) is whether the statutory right to an interlocutory appeal to challenge the granting of a temporary injunction is an empty right if it means a party can never have the merits of the temporary injunction determined by the court of appeals.  The court's opinion may be found here.

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Since 1985, the test for whether a writ of mandamus will issue in connection with a trial court's refusal to grant a plea in abatement under the doctrine of dominant jurisdiction has required proof of an active interference by one court with the jurisdiction of another court.  The loosening of mandamus standards does not appear to have changed that requirement.  The Texarkana Court of Appeals reaffirmed that rule in In re Martin.

The underlying dispute involves a fight between brothers Scott Martin and Ruben Martin over a family-owned company, Martin Resource Management Corporation (M.R.M.C.).  Scott initially sued M.R.M.C and Ruben in Harris County, complaining of a wrongful issuance of shares of stock aimed at diluting Scott's voting power.  M.R.M.C. subsequently filed suit against Scott in Gregg County and eventually limited his claim to one for breach of fiduciary duty.  Although some of the factual bases for alleged liability against Scott arose after the Harris County suit, the court of appeals points out that at least a part of the basis for the breach of fiduciary duty claim was the filing of the Harris County lawsuit.

The trial court issued a writ of injunction against Scott prohibiting Scott from taking any action to prevent M.R.M.C.'s prosecution of the Gregg County case or preventing M.R.M.C. from participating in the Gregg County trial.  The injunction was apparently issued because of Scott's attempts to have the Harris County court enjoin M.R.M.C. from proceeding with the Gregg County case.  The court of appeals denied mandamus relief upon a finding that the trial court's injunction against Scott does not amount to an interference on the part of the Gregg County Court with the Harris County trial court proceedings.  The court's opinion may be found here.

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Justice Don Willett will speak  to the Dallas Bar Appellate Section at noon on Thursday, January 19, 2012 at the Belo Mansion.  He will speak on "Tips and Preferences on Practicing Before the Court." One hour of CLE is available.

Justice Willett will also speak to the Collin County Bar Association at its monthly lunch meeting at noon on Friday, January 20, 2012 at the Center for American and International Law in Plano.  Lunch will be provided and one hour of CLE is available.

Justice Willett was appointed to the Texas Supreme Court by Governor Rick Perry in 2005.  Justice Willett has lead a diverse and distinguished career as Deputy Attorney General of Texas and before that, serving as a lawyer in the White House and Department of Justice.  He is recognized for his engaging and scholarly opinions and has been cited by noted columnist George Will.  He is currently serving a term that expires on December 31, 2012.  For more information about Justice Willett visit his official court bio.

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The Dallas Court of Appeals has explained how to submit jury questions for negligence of employees for whose conduct employers may be held vicariously liable.

 In Janga v. Colombrito, two defendant doctors appealed an adverse jury verdict and complained that the trial court had not submitted the liability of two nurses as part of the liability question.  The appellate court first had to decide whether the nurses were "settling persons" under Chapter 33 of the Civil Practice and Remedies Code.  The court held that the nurses were settling persons.  Even though the nurses did not themselves pay money, their employer--the hospital--did pay money on their behalf and the nurses were parties to a settlement agreement whereby they were dismissed from the case.  The hospital would have had vicarious liability for the nurses' alleged negligence.

Next, the court examined the record to determine if there was some evidence of the nurses' negligence and concluded that there was some evidence.  Thus, the court held that it was error to omit them from the list of parties whose negligence should have been decided by the jury.  Noting that when there is a respondeat superior claim submitted, the individual employee defendant's negligence is submitted, rather than that of the employer.  The court concluded there is no reason to treat settling employees any differently.  Finally, the court rejected the argument that the jury had disregarded the jury questionnaire and assessed liability on the hospital for the nurses' conduct along with direct liability to the hospital.  The court must presume that the jury followed the trial court's written instructions.  The court's opinion may be found here.

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The Fort Worth Court of Appeals recently held that it was error for a trial court to order that an attorney not file a notice of appeal until his client directed him to do so.  After trial, Relator's counsel sought to have appellate counsel substiuted in for any possible appeal.  The Texas Department of Protective and Regulatory Services (Department) opposed the request and argued that no appellate counsel should be appointed, and no notice of appeal should be filed, until Relator expressed his desire to appeal.  The trial court signed an order denying the substitution and prohibiting counsel from filing a notice of appeal unless Relator so directed.  Relator sought mandamus relief and argued that whether counsel has authority from a client to file a notice of appeal is an issue for the appellate court regarding its jurisdiction.  The court of appeals agreed, holding that "to the extent there is a factual dispute concerning the lawyer's authority to file a notice of appeal, the dispute must be resolved by the court of appeals . . . ."  The court also held that "[t]he trial court does not, however, have the authority to interfere with our jurisdiction by prohibiting a party from filing a notice of appeal."  Accordingly, the court granted the petition and ordered the trial court to vacate its order prohibiting the filing of a notice of appeal.  The court's opinion in In re J.R.J. can be found at this link.

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The Dallas Court of Appeals has held that Appellate Rule 24.3(a)(3) cannot be invoked to allow an Appellee to provide a "reverse supersedeas bond" when doing so denies an Appellant its appeal.

In Hydroscience Technologies Inc. v. Hydroscience Inc., Hydroscience, Inc. obtained a declaratory judgment declaring that it owned shares of preferred stock in Hydroscience Technologies and giving it a right to examine Hydroscience Technologies' company books.  Hydroscience Technologies appealed this judgment.  The trial court denied Hydroscience Technologies the right to supersede the judgment and allowed Hydroscience Inc. to post a "reverse supersedeas" bond in the amount of $10,000 so as to allow Hydroscience Inc. to examine the company books while the judgment was on appeal.  Hydroscience Technologies filed a motion with the court of appeals to review the trial court's denial of its supersedeas request.

After pointing out that Hydroscience Technologies was appealing the trial court's judgment that granted the right to inspect its company books, the court of appeals noted that once Hydroscience Inc. is allowed to inspect the books pursuant to the supersedeas order, then the damage to the right to an effective appeal has been done.  The court held that Rule 24.3(a)(3)'s "reverse supersedeas" provision does not give the trial court discretion to deny an Appellant its appeal.  The court's opinion may be found here. 

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The Amarillo Court of Appeals dismissed a Petition for Writ of Mandamus against a justice of the peace because a court of appeals does not have jurisdiction to issue a writ of mandamus against a justice of the peace.

In In re Smith, the relators sought a writ of mandamus against a justice of the peace in Floyd County, Texas to order the JP to set a case for a jury trial and to enforce a Rule 11 Agreement and for other assorted requests.  The court of appeals noted that its power to issue writs is derived from the constitution and from statute and neither of those authorities afford jurisdiction to issue a writ of mandamus against a justice of the peace.  Accordingly, the court dismissed the petition for writ of mandamus for lack of jurisdiction.  The court's opinion may be found here.

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The Dallas Court of Appeals, in an opinion by Chief Justice Carolyn Wright (left), recently held that attorney's fees awarded in a judgment need not be superseded on appeal.  In an opinion last year also by Chief Justice Wright, the Dallas Court held that attorney's fees awarded in a breach of contract case were not "compensatory damages," and, therefore, were not required to be superseded on appeal.  Here, attorney's fees were awarded under Chapter 134 of the CPRC, otherwise known as the Texas Theft Liability Act.  The Court held that Chapter 38 (regarding breach of contract) and Chapter 134 of the CPRC were basically indistinguishable noting that attorney's fees were mandatory under  both provisions.  The Court refused to follow the rationale of the Houston (1st) Court of Appeals, which had previously held that attorney's fees constitute compensatory damages and must be superseded on appeal. Consequently, the Dallas Court denied the Appellee's request to increase the supersedeas bond to secure the award of attorney's fees.  This creates a spilt of authority between Dallas and Austin, both holding attorney's fees need not be superseded, and Houston (1st), holding attorney's fees must be superseded, making it ripe for review by the Texas Supreme Court.   The Court's opinion in Imagine Automotive Group, Inc. v. Boardwalk Motor Cars, LLC can be found here.  

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When I don't want oral argument or don't think it is necessary, my standard operating procedure has been to (1) put nothing regarding oral argument on the front cover of my brief, and (2) include a Statement Regarding Oral Argument in the brief explaining why it has not been requested but adding a statement that, if the Court desires oral argument, then Appellant (or Appellee) would like the opportunity to appear and present argument.

I learned today that the clerks at the Dallas Court of Appeals would like something on the front of the brief regardless of whether you are requesting oral argument.  So, in the scenario above, I would (1) put something like this on the front cover: "Oral Argument Not Requested Unless Requested by Appellee and/or the Court," and (2) include the Statement Regarding Oral Argument in the brief as usual.

This will make the clerk's office happy because they won't have to dig through your brief to determine whether or not a motion to allow argument is necessary.  It should also alleviate the need to ever file such a motion.  A win-win for everyone! 

Happy briefing.

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