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

In Port Elevator-Brownsville, L.L.C. v. Casados, the Texas Supreme Court reaffirmed this State's prohibition on split workforces (i.e., Texas employers are not permitted to cover some but not all employees with worker's compensation insurance if the employer is a subscriber), and confirmed that a temporary employee is covered by the employer's comp policy (and subject to the comp bar) even if the employer took steps to intentionally exclude the temporary employee from coverage (such as not paying premiums for such employees or not including a classification for temporary employees under the policy).

Practitioners on both sides of the bar that deal with personal injury and wrongful death claims should take note of this opinion because it confirms what many in the defense bar have been arguing for a number of years.  But coverage attorneys should also take note because one key point in the Court's analysis was its acceptance of a rule set out by the Amarillo Court of Appeals in 1940 -- that "premiums are an issue between the employer and the insurer; they do not affect the employee's coverage." (Slip op. at 9) (citing Tex. Employers' Ins. Ass'n v. Stanton, 140 S.W.2d 337, 339-40 (Tex. Civ. App.--Amarillo 1940, writ ref'd).

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The Texas Supreme Court's Advisory Committee will be meeting Friday, January 27th and Saturday, January 28th to discuss--among other things--the proposal that the Court's task force has assembled to implement House Bill 274.  In relevant part, House Bill 274 requires the Court to adopt rules for a "prompt, efficient, and cost-effective resolution of civil actions" for claims that do not exceed $100,000.  The house bill provides that the rules to be adopted must address the procedure for "ensuring that these actions will be expedited in the civil justice system."  So why would the task force propose a rule that all but eliminates an appeal except in the narrowest of circumstances?  That doesn't sound like a procedure for expediting an appeal.

The Task Force has presented proposed Rules 262.4 and 262.5.  Proposed subparagraph 262.5(e) deals with appeals and would allow for an appeal in a case under the expedited jury trial process only in (1) cases of judicial misconduct, (2) jury misconduct, (3) corruption, fraud, or undue means that prevented a fair trial, or (4) summary judgments.  In other words, no challenges to factual or legal sufficiency.  No challenges to jury charges.  No challenges to the form of the judgment.  Is this procedure expediting an appeal, or eliminating an appeal?  I thought perhaps that there was some definition of "expedite" that I was missing, so I looked it up to make sure.  Nope.  But I did find it interesting that some thesauruses list "block," "cease," "curtail," and "halt" as antonyms of expedite.  I have to wonder how many of my clients will realize or understand that they are essentially giving up their appellate rights to challenge the outcome by agreeing to the expedited process. 

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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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