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

Appellate practitioners will want to take note of the Amarillo Court of Appeals' opinion in In re Z.A.S.  In this case, the Attorney General, as Appellee, filed an "Agreed Motion for Reversal and Remand and for Immediate Issuance of Mandate."  After noting that the motion was technically only an unopposed motion and not an agreed motion due to the fact that it was signed only by counsel for the appellee, the court went on to conclude that it could not grant the requested relief because the appellate rules do not permit it.

The motion sought reversal, remand, and a hearing on the merits.  The court of appeals held that this requested form of relief is not encompassed within Appellate Rule 42.1(a)(2)'s list of dispositions.  Evidently, the court reads Rule 42.1(a)(2)(A) language of "render judgment effectuating the parties' agreement" as only permitting affirmance or reversal, but not remand.  Thus, assuming that the parties reach an agreement that some hearing or trial was improperly conducted, it appears that this decision would not allow court of appeals to remand to the trial court to fix that error merely upon the agreement of the parties.  In support of its result, the court cites to the notes and comments to Rule 42.1.

The court's opinion may be found at this link.

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In Resurgence Financial, L.L.C. v. Foster, the Dallas Court of Appeals followed and applied the Texas Supreme Court's opinion in Thordson v. City of Houston.  From the moment that Resurgence filed its suit the trial court notified Resurgence that the case would be placed on the dismissal docket unless an answer were filed by a date specified.  On October 23, 2007, Resurgence filed a motion for substituted service, supported by affidavit.  The trial court returned the motion with an unsigned letter stating that Resurgence had failed to establish sufficient attempts to serve the defendant.  On the same day the trial court returned the motion, it dismissed the suit for want of prosecution.  Resurgence filed a motion to reinstate and asked for a hearing in its motion.  The record showed no indication that the trial court heard the motion, but there was a docket entry indicating that the judge was aware of the filing.  The motion to reinstate was overruled as a matter of law.

On appeal, Resurgence raised a single issue to complain about the lack of a hearing on its motion to reinstate.  The court of appeals holds that "the trial court's failure to comply with rule 165a(3) is erroneous and requires reversal."  The court's opinion may be found here.

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The Houston First Court of Appeals has held that a voidable attorney-client retainer agreement may not be used as a basis upon which to establish personal jurisdiction in a suit by the attorney against the client on the agreement.   In Cobb v. Sterm, Miller and Higdon, Cobb, a Louisiana resident, was injured in Louisiana while working on an anchor boat in Lousiana for his Lousiana employer.  The law firm went to Louisiana to solicit Cobb as a client.  Two months later, one of the law firm's representatives drove Cobb to Houston where he signed an engagement agreement providing for the application of Texas law.   A few weeks later, Cobb terminated the law firm and three days after that, he settled his claims with his employer and went back to work.

The law firm brought suit in Texas against Cobb to recover its expenses and Cobb filed a special appearance.  The trial court [11th Judicial District] initially sustained Cobb's special appearance, but on rehearing, the court [151st Judicial District] granted the law firm's new trial.  Cobb filed an interlocutory appeal.

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In a case of first impression the Texas Supreme Court  recently held that the issue of whether a party has the mental capacity to contract is an issue for courts, not arbitrators.  The Court traced the history of the so-called "separability" spawned by the United States Supreme Court's decision in Prima Paint Corp. v. Conklin Manufacturing Co., 388 U.S. 395, 404 (1967), that held that challenges to an entire contract should be decided by arbitrators and challenges to an arbitration agreement itself should be decided by courts.

The separability doctrine proved problematic in a third category of cases; those in which a party challenged the very existence of a contract in the first place, so-called "contract formation" issues.  Relying on dicta in Buckeye Check Cashing, Inc. v Cardegna, 546 U.S. 440, 444 n.1 (2006), and numerous other state and federal decisions, the Texas Supreme Court held that contract formation issues, specifically mental capacity, are for courts, not arbitrators.  Accordingly, the Court denied Morgan Stanley's attempt to compel arbitration by mandamus.  Justice Hecht dissented and would have treated lack of capacity as "closer to fraudulent inducement than to lack of signature."  The Court's opinion in In re Morgan Stanley & Co., Inc. can be found at this link.

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The United States Supreme Court’s recent opinion in Caperton v. A.T. Massey Coal Co., raises some unique questions for our own system of electing judges in Texas.  Justice Kennedy, writing for the majority, holds that the campaign contributions of the chairman of the board and president of Massey Coal toward the campaign of a West Virginia Supreme Court candidate raised “the probability of actual bias ris[ing] to an unconstitutional level.” The majority gives little bright-line guidance for future cases, but in apparent recognition of the precedential implications of its holding, the majority is careful to emphasize the extreme nature of the facts of the case, including that the Massey chairman donated the maximum personal contribution to the candidate and $2.5 million to a political PAC, and those donations accounted for more than two-thirds of the total funds raised. The contributions were more than the total amount spent by all other supporters for the candidate.
The dissent, written by Chief Justice Roberts, expresses concern at extending due process to application of judicial disqualification. Instead, the dissent suggests that disqualification is a matter more properly left to the states to regulate by statute or rule. By extending due process to matters of disqualification, the dissent warns that the majority may actually undermine concerns for the need to maintain a fair, independent and impartial judiciary.  The Court's opinions may be found at this link.

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