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

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 reversed a district court's order denying a plea to the jurisdiction that had been filed by the Texas attorney general, who had intervened in the proceeding for the purpose of contesting jurisdiction.  The court of appeals held that Texas district courts lack jurisdiction to grant divorces to same-sex couples legally married in other states.  Construing Texas Family Code Section 6.204(c), Justice Kerry FitzGerald, writing for a three-judge panel, held that section 6.204(c) "deprives the trial court of subject matter jurisdiction."  The court further held that the state law prohibiting a divorce of parties to a same-sex marriage does not violate the Equal Protection Clause of the 14th Amendment to the United States Constitution.  The court's opinion on In re J.B. & H.B. can be found at this link.

Mandamus aficionados may wish to study the portion of the court's opinion holding that the attorney general had no adequate remedy by appeal because of the exceptional nature of the case involving (1) principles of subject-matter jurisdiction, (2) constitutional challenges, (3) potential interference with the State's right to be heard, and (4) potential interference with the State's right to appeal the denial of a plea to the jurisdiction.

One issue not addressed was the district court's ruling that the State did not have standing to intervene.  The court of appeals avoided addressing the standing issue by reasoning that the district court had ruled the State lacked standing after the State had filed an interlocutory appeal to complain of the district court's earlier denial of the plea to the jurisdiction.   The court of appeals held that the district court's order addressing standing was signed in violation of the automatic stay set out in Texas Civil Practice and Remedies Code Section 51.014(b).

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The Dallas Court of Appeals recently discussed the difference between judicial errors and clerical errors and highlighted why it's so very important to pay attention to the language in orders and judgments.

In In the Interest of N.E., D.E., & M.E., the trial court rendered a final judgment with a Mother Hubbard clause.  The same judgment contained language stating that the intervention of an attorney for one of the parties (seeking attorney's fees) was stricken.  The trial judge interlineated language that would have made the striking of the intervention "without prejudice."

One hundred seventy-five days later, the trial court attempted to vacate its judgment and render a new judgment reciting dismissal of the intervention without prejudice.  The question on appeal became whether such an order was a clerical mistake that could be corrected by nunc pro tunc judgment.  The court of appeals held that adding the language "without prejudice" to the judgment was a change in the judgment actually rendered and was not correcting a clerical error.  Thus, the court of appeals held that the trial court had no authority to make the change in its judgment since its plenary power had expired.  The court of appeals' opinion may be found here.

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Appellate practitioners know that winning an appeal is not always the end of litigation.  Sometimes it's just a new beginning of disputes, as my blog entry regarding the Supreme Court's opinion in the In re Columbia Medical Center case indicates.  But other times, it really is supposed to be the end.  What happens if the trial judge doesn't see it that way?

 Last month, I blogged about a case called In re Victor Enterprises, Inc., in which the Dallas Court of Appeals granted a petition for writ of mandamus against Dallas County Court at Law No. 1 after the judge of that court granted a petition for writ of mandamus without requesting a response from the Relator, Victor Enterprises.   The court of appeals held that such an act was clear error and granted mandamus.  Now there's more to the story...

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The Amarillo Court of Appeals recently issue an opinion in In re Lagaite, in which the Court dismissed the petition for writ of mandamus for want of jurisdiction.  The petitioner complained of medical treatment he received while incarcerated in a Texas prison and evidently named the medical doctor as the respondent.  Noting that Texas Government Code Section 22.221(a) and (b) grant mandamus jurisdiction to protect an appellate court's jurisdiction or to issue writs against a district or county court judge, the court of appeals concluded it did not have jurisdiction.  The Court's opinion may be found here.

I had a similar issue come up in an appeal I handled many years ago and I recall that there were a few cases out there in which mandamus had issued against persons other than a district or county court judge and protection of the appellate court's jurisdiction was not in issue.  I would be interested in hearing from any of our readers whether they are familiar with other cases in which a court of appeals issued a writ of mandamus against someone other than a district or county judge and protection of the appellate court's jurisdiction was not in issue.

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The Houston (First) Court of Appeals recently issued an interesting opinion regarding perfection of an appeal from a small claims court to a county court at law.  The appellant failed to timely file an appeal bond within ten days of the judgment pursuant to to TRCP 571.  Instead, the appellant "deposited $5,000 in cash . . . in lieu of a justice court appeal bond."  The small claims judgment was not in the record, but the judgment was entered on April 12, 2007 at the latest because the appellant attempted to appeal the judgment on that date.  The deposit, however, was not made until May 4, some 22 days later.  Thus, appellant's attempt to perfect the appeal was late regardless of whether the appellant filed a bond or made a deposit.

The court of appeals continued and also stated:

Even if [appellant] had timely filed its cash bond in the justice court, instead of untimely filing it in the county court, when a deposit of cash has not been authorized by statute, such a deposit does not constitute sufficient compliance with the statute that requires a bond to be given.

The court cited two cases, one from 1929 and one from 1952, in support of the proposition that Rule 571 does not authorize the fiing of a cash bond in lieu of a surety bond.  In fact, one case was quoted as holding "we have found no Rule so providing."

That's because the rule didn't exist yet.  Rule 14c was adopted in 1981 and expressly allows any surety bond required by the rules to be satisfied by a cash deposit.  Appellant's appeal in this case could not benefit from the rule because it seems that the attempted deposit was late.  But to the extent the court's holding regarding the deposit was an alternative holding, as opposed to mere dicta, it is contrary to TRCP 14c.  The court's opinion in Gundogan v. Woodgrove Condo. Ass'n can be found at this link. 

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When a party (or the party's attorney) does not receive actual notice of an adverse judgment within 90 days of that judgment, the party may make use of Texas Civil Procedure Rule 306a to extend deadlines for filing a motion for new trial or to appeal.  But its important that the party invoking Rule 306a file a sworn motion, obtain a hearing on the motion, and get a finding of the trial court as to the date the party (or the party's attorney) first received notice of the judgement.  The Waco Court of Appeals recently explained the consequences of the failure to do so in In the Matter of the Marriage of Rider & Rider.

After Beverly Jane Rider filed an appeal from a final decree of divorce, the clerk of the court noted that it appeared the notice of appeal was untimely.  Ms. Rider responded by pointing out that she did not receive a copy of the final decree until 29 days after it was signed and she filed a motion for new trial "pursuant to Rule 306a."  Noting that Ms. Rider never obtained a ruling on her motion, the court of appeals points out that she had not fully complied with Rule 306a(5), which requires a hearing, proof, and a ruling.  Accordingly, the court holds that the notice of appeal Ms. Rider filed was untimely and the court dismissed the appeal for lack of jurisdiction.  The opinion may be found at this link.

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The Houston Fourteenth District Court of Appeals highlighted a split of authority in the courts of appeals regarding waiver of immunity in the Texas Whistleblower Act.  In Galveston ISD v. Jaco, the Court considered the question of whether immunity from liability is coextensive with immunity from suit under the Whistleblower Act.  The Court observed that the San Antonio Court of Appeals, the Amarillo Court of Appeals, and the Waco Court of appeals each have treated the elements of a whistleblower claim as jurisdictional.  However, the Houston First Court of Appeals, the Austin Court of Appeals, the Dallas Court of Appeals, and the Corpus Christi Court of Appeals each have concluded that the elements of a claim are not jurisdictional.  The Fourteenth Court of Appeals joined the latter group and held that waiver of immunity from suit is not dependent upon the merits of the claim.  The Court went on to hold that the trial court had not erred in denying the school district's plea to the jurisdiction. The Court's opinion may be found at this link.

In light of the split of authority, this issue would seem to be ripe for resolution by the Texas Supreme Court.   And it appears the supreme court may address this issue in State of Texas v. Lueck, No. 06-1034.  The Court has granted the petition for review and this issue is one of two presented.  The case was argued November12, 2008.  Briefs in the case may be found at this link.  The oral argument may be found at this link.

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The Dallas Court of Appeals held that a pro se letter from an Illinois resident denying liability and requesting an extension of time to retain counsel and file a "complete answer" waived the defendant's subsequent special appearance.  The defendant argued that the letter did not consitute an answer.  The court held that  the letter constituted an answer.  Because an answer constitutes a general appearance, the court held the defendant waived any challenge to the trial court's personal jurisdiction.  The court's opinion in Triad Realty Servs., Ltd. v. Green can be found at this link.

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In a longstanding dispute over which agency has the authority to regulate engineers, the Austin Court of Appeals recently held that the Texas Society of Professional Engineers (Society) lacked standing to bring suit against the Texas Board of Architectural Examiners (Board) on behalf of its members because it failed to meet the test for associational standing.  The court of appeals applied the test set forth by the Texas Supreme Court in Texas Association of Business v. Texas Air Control Board:

[A]n association has standing to sue on behalf of its members when (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.

Because the Society failed the third prong, the court of appeals affirmed the trial court's dismissal for lack of standing.  The court of appeals' opinion in Texas Society of Professional Engineers v. Texas Board of Architectural Examiners can be found at this link.

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The Dallas Court of Appeals vacated a portion of a district court's order directing the Office of Attorney General to remit payments to a private company that collects and disburses child-support payments for a fee.  Pursuant to Texas Government Code sec. 22.002(c), the court of appeals held that only the Texas Supreme Court has the authority to issue a writ of injunction against officers of the executive branch.  The court found that the portion of the order directing the OAG to remit payments to the private company was void.  The court's opinion in In the Interest of A.B., Jr. can be found at this link.

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The Fort Worth Court of Appeals recently held that participating in board meetings via telephone with Texas residents is sufficient to establish specific jurisdiction in Texas. The court of appeals distinguished the Texas Supreme Court’s opinion in Michiana Easy Livin’ Country, Inc. v. Holten as follows:

“Although the supreme court has disapproved opinions holding that . . . specific jurisdiction is necessarily established by allegations or evidence that a nonresident committed a tort in a telephone call from a Texas number, Michiana, 168 S.W.3d at 791 (emphasis added), it has not held that telephone calls are never sufficient to establish minimum contacts.”

Like Michiana, the Texas plaintiffs in this case telephoned the out-of-state defendants. Unlike Michiana, in which the plaintiff made one phone call, “this case involves many telephonic board meetings at regular intervals over a span of years.” This is a close case.  But, at the very least, it stands for the proposition that phone calls alone can constitute sufficient minimun contacts to establish specific jurisdiction.  A copy of the court of appeals’ opinion in Glencoe Capital Partners II, L.P. v. Gernsbacher can be found at this link
 

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