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

The Fifth Circuit Court of Appeals recently held that a district court overstepped the bounds of a court's inherent authority by sanctioning conduct that occurred in connection with an arbitration proceeding. 

In Positive Software Solutions, Inc. v. New Century Mortgage Corp., the district court invoked its inherent authority to sanction and sanctioned the attorney representing New Century for conduct that had occurred during an arbitration proceeding.  Relying on established precedent, the appellate court observed that inherent power does not extend to collateral proceedings that do not threaten the court's own judicial authority or proceedings.  The Fifth Circuit expressed its concern that a district court might use its inherent power to sanction as a means to seize control over substantive aspects of arbitration.  The Court went on to set out two means by which a party could seek redress for wrongdoing during an arbitration proceeding after the conclusion of the proceeding: (1) the grievance process, or (2) reopening the proceedings.

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

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I have said on various occasions (during admittedly nerdy conversations with colleagues) that this expert opinion or that piece of evidence surely constitutes no evidence as a matter of law and that no court could possibly see it differently.  But we all know that it is never quite that easy and never that clear cut.  The Beaumont Court of Appeals' recent 2-1 opinion in Pink v. Goodyear Tire & Rubber Company illustrates this point.

In Pink, the panel reversed a no evidence summary judgment rendered for Goodyear.  That reversal was based, in part, on the court's determination that the following expert testimony presented by Pink constituted some evidence of causation: 

I was Veryl Pink's treating oncologist. Mr. Pink was diagnosed with renal cell carcinoma, which was confirmed by biopsy. The ultimate cause of Mr. Pink's death was the progression of the disease.

Based upon reasonable medical probability it is my opinion that the cause of Mr. Pink's renal cell carcinoma was exposure to chemicals, more than likely benzene. In rendering this opinion I have reviewed Mr. Pink's medical records, the deposition testimony of Mr. Pink and three of his coworkers, the deposition of Dr. Radelat, and scientific literature.

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Each election season is sure to bring a slew of new mandamus opinions as decisions of our election officials are challenged.  That's what happened in In re Cercone. 

Albert Cercone, who is the Republican Party nominee for Dallas County Justice of the Peace, Precinct 3, Place 1, filed a petition for writ of mandamus to challenge the possible certification and placement of Democratic candidate Joseph Ramirez Miller on the ballot.

Under the facts of the case, it appears that the original Democratic candidate for that position was declared "ineligible" by Darlene Ewing as Chair of the Dallas County Democratic Party.  As a result, Ewing certified Miller as the replacement candidate and reported the certification to Bruce Sherbet, the elections administrator for Dallas County.

Upon review of the Election Code, the Dallas Court of Appeals held that the declaration of ineligibility did not rest upon valid grounds because a deficiency in the number of signatures required to put a name on the ballot is a deficiency in the application for office, not a deficiency in eligibility of the applicant.  Notably, however, the Court did not issue a writ of mandamus against either Ewing or Sherbet.  To obtain mandamus relief, Cercone was required to show that he first demanded that Ewing perform her duty not to declare the initial candidate ineligible.  Cercone did not do so.  The Court also declined to grant mandamus relief against Sherbet because Sherbet had no duty to inquire into the validity of the certification of Miller. 

The court's opinion may be found here.

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