Attorneys may be deposed as fact witnesses

Posted on April 13, 2010 by Byron Henry

In a brief memorandum opinion, the Dallas Court of Appeals affirmed that attorneys may be deposed as fact witnesses while counsel in the underlying litigation.  Here, the trial court denied a party's motion to compel the deposition of the opposing party's lawyer.  The court of appeals stated that "[t]he mere fact that a fact witness is acting as an attorney in the case will not prevent his deposition from being taken when it is otherwise proper."  Whether the testimony is privileged or admissible "cannot be determined until his deposition is taken."  The opinion does not address the issue of admitting the testimony at trial or calling the attorney as a witness in light of Disciplinary Rule 3.08.  Accordingly, the Court granted the petition for writ of mandamus and ordered the trial court to grant the party's motion to compel.  The Court's opinion in In re Glassman can be found at this link.

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Mandamus to prevent exercise of jurisdiction where there is none

Posted on March 25, 2010 by Mike Northrup

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...

It turns out that the county court's granting of the writ of mandamus occurred because Victor Enterprises had obtained a judgment against the real party in interest, Clifford Holland, in justice court and Mr. Holland did not appeal that judgment.  Instead, he sought a writ of mandamus from the county court.   After the county court vacated her mandamus as directed by the court of appeals, the justice court reinstated its judgment, which became final and unappealable.

Victor Enterprises then obtained a writ of possession and a writ of execution, at which point, Mr. Holland sought protection again from the county court judge.  The county court judge signed an order suspending execution of the writ of possesion.  Seven days later, the county court judge signed an order in a prior, pending suit between the parties, which had been timely appealed, and the court enjoined Victor Enterprises from initiating, prosecuting, or executing any litigation, action or writ seeking possession of or eviction of Mr. Holland from his residence.  The order stated that the writ was issued to protect the county court's jurisdiction.

Victor Enterprises filed a second petition for writ of mandamus with the Dallas Court of Appeals.  In In re Victor Enterprises, Inc. II, the court of appeals points out that "[t]he county court at law never obtained jurisdiction over [the unappealed justice court judgments] because [Mr. Holland] did not appeal the judgments of the justice court."   The court held that the county court "is not authorized to interfere with the two final, unappealed justice court judgments that do not relate to the subject matter of [Mr. Holland's] direct appeal . . ."  The appellate court concluded that it was error for the county court judge to suspend execution on the justice court's unappealed judgments and granted the writ of mandamus.  Noteably, the opinion refers to the trial judge by name, rather than referring to her as "trial judge," "respondent" or "the trial court."   The court's opinion may be found here.
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Using mandamus to fix errors in judgments

Posted on March 19, 2010 by Mike Northrup

The case I blog about today reminds us of why it's so critical to pay attention to appellate judgments.  As appellate practitioners, too often the first and only thing we study closely is the opinion, and errors in the appellate judgment go unnoticed.  To understand what happened here, I will start with a bit of history of the case.

In August of 2008, the Texas Supreme Court issued an opinion in Columbia Medical Center of Las Colinas, Inc. v. Hogue, in which the Court "affirm[ed] the award of actual damages and gross negligence damages", but "reverse[ed] the portion of the judgment awarding loss of inheritance damages."  The court's majority opinion may be found at this link.  Apparently, the judgment issued the same day simply stated that the portion of the court of appeals' judgment awarding loss of inheritance damages is reversed and the remaining portions of the court of appeals' judgment were affirmed.   In short, the court rendered judgment and did not remand the case.  The Court's online docket shows Columbia filed a motion for rehearing, but there's no indication what complaints were made.

After the court of appeals mandate issued, a dispute arose between the parties regarding the (now affirmed) award of gross negligence damages.  Columbia argued that because the actual damages had been reduced, Texas Civil Practice and Remedies Code Section 41.008(b) required reduction of the punitive damages as well. 

In February of 2009, Columbia filed a motion with the Texas Supreme Court asking that the Court modify the mandate to reflect that punitive damages must be reduced (per statute).  The court denied the motion over a dissent authored by Justice Wainright (joined by Justices Hecht and Brister).  The dissent may be found at this link.

 

Then, in September of 2009, Columbia sought mandamus relief to compel the trial court to (further modify the final judgment) "to reduce the [affirmed] punitive damage award in compliance with the statutory cap."  By per curiam opinion, the Texas Supreme Court held that the trial court abused its discretion by refusing to reduce the punitive damage award.   Stating that punitive damage awards that are statutorily capped are required to be recalculated when the actual damages against which they are measured are reduced on appeal, the court frames the question as whether its judgment had the effect of reducing the punitive damages award.   The court also observes that it has jurisdiction to enforce its judgments by mandamus.  Then the court acknowledges that its "judgment did not expressly address the amount of punitive damages" but asserts that the reduction was required by statute.  The court then holds "to give full effect to our judgment vacating a portion of the economic damages, the trial court was requred to reduce the punitive damages award in compliance with the statutory cap.  By failing to do so, the trial court abused its discretion."  The opinion may be found here.

The court's opinion does not indicate whether Columbia sought a reduction of punitive damages in its original trip to the court in the event that the actual damages were reduced.  The opinion also does not indicate whether Columbia sought to modify the judgment when Columbia filed its motion for rehearing.  One question I have in the wake of this opinion is what other instances in which statutory law may require a reduction of damages can a party assert that the trial court must modify an affirmed final judgment.  Perhaps the same argument could be made for prejudgment interest or post-judgment interest.  One must wonder if trial courts will know when they've abused their discretion and when they have not abused their discretion.  One must wonder if a final judgment really is final after it has been rendered by the Texas Supreme Court.
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Due Process requires an opportunity to be heard

Posted on February 11, 2010 by Mike Northrup

The Dallas Court of Appeals has held that "due process requires that a party be given the opportunity to present its arguments to a court before the court makes a ruling." (citing TRAP 52.4).

In In re Victor Enterprises, Inc., the trial court (Dallas County Court at Law No. 1) granted a petition for writ of mandamus without requesting a response from Victor Enterprises.  Victor Enterprises sought mandamus relief in the court of appeals.  Interestingly, the court of appeals requested a response from the real party in interest.  The real party in interest filed no response.  The court of appeals concluded that the trial court abused its discretion by granting the petition without requesting a response or allowing Victor Enterprises time to file a response.   The writ of mandamus was conditionally granted.  The court's opinion may be found here.

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Pay for Play An Abuse of Discretion

Posted on January 9, 2010 by Byron Henry

The Houston (Fourteenth) Court of Appeals recently held that a trial court abuses its discretion if it conditions a trial setting on the payment of sanctions.  Here, after a plaintiff and his attorney were sanctioned $45,000 and $5,000, respectively, they challenged the sanctions order by mandamus.  In its memorandum opinion, the court of appeals began by holding that because the plaintiff and his attorney did not claim that the sanctions threatened their ability to continue the litigation, they had an adequate remedy by appeal and, thus, were not entitled to mandamus relief with respect to the sanctions.

In addition to awarding sanctions, however, the order set the trial for the "next available trial date following payment of the fees in full as ordered herein."  Citing precedent, the court held that "[a] sanctions award that impedes the prosecution of the case warrants extraordinary relief."  Accordingly, the court of appeals conditionally granted mandamus and ordered the trial court to delete the language in the sanctions order that conditioned the trial setting on the payment of sanctions.  The court's opinion in In re Gawlikowski can be found here. 

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"Overly broad is the way that leadeth to mandamus."

Posted on December 21, 2009 by Byron Henry

At least that's how the Texas Supreme Court's version of Matthew 7:13 reads.  In a per curiam opinion, the Court recently demonstrated its vigilance in policing overly-broad discovery orders.  In this product liability case, the plaintiff sought all documents of consumer complaints regarding "the sidestep on any model backhoe."  John Deere objected to the request as overly broad.  The trial court narrowed the request to models with step assemblies similar to the allegedly defective model, but did not impose a reasonable time limit.  The Court reaffirmed that discovery orders compelling production must set reasonable time limits and that "[a]n order that compels overly broad discovery is an abuse of discretion for which mandamus is the proper remedy."  Accordingly, the Court granted the petition and vacated the trial court's discovery order to the extent it failed to set a reasonable time limit.  The Court's opinion in In re Deere & Company can be found here. 

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Discovery of Net Worth Continues to Simmer

Posted on October 28, 2009 by Mike Northrup

At least since the Texas Supreme Court's 1994 opinion in Transportation Insurance Company v. Moriel, questions of the right to discovery of a defendant's net worth information, the definition of "net worth", and the scope of information relating to net worth have been simmering in the district courts and in the courts of appeals.  The latest opinion on the subject has been issued by the Fourteenth District Court of Appeals and the concurring opinion makes case for why it's time for the Texas Supreme Court to address these thorny issues.  The majority's opinion in In re Jacobs may be found here.  The concurring opinion may be found here.

In re Jacobs is a case in which the plaintiffs brought suit for negligence and gross negligence in connection with medical care provided to Shannon McCoy.  Plaintiffs initially sought discovery of net worth information from the defendant medical providers.  The trial court first ordered Plaintiffs to replead to provide more specific allegations of gross negligence, and subject to a sufficient pleading, the trial court ordered the defendant physicians to produce financial statements they provided to a lender within the past 2 years or alternatively  to provide an affidavit stating what the net worth would have been if such a financial statement had been provided to a lender.  The trial court later clarified that the plaintiffs also would be allowed to depose the two physicians about their net worth.  The physicians sought relief from the court of appeals by writ of mandamus.

The majority notes that the physicians requested application of standards different from what appears to be the prevailing standard in Texas, but the majority concludes that it is "bound by the supreme court's ruling in Lunsford [v. Morris]."  The majority goes on to conclude that the Plaintiffs' live pleadings sufficiently alleged specific facts to support their allegations of gross negligence.  However, the majority concludes that the trial court did not sufficiently narrow the scope of the discoverable information.  First, the court holds that "only the relators' current net worth is relevant."  Accordingly, the court held that there was an abuse of discretion insofar as allowing discovery of past net worth.  The majority also concludes that that the trial court abused its discretion in allowing deposition questions to exceed the narrow inquiries into current net worth (defined as total assets less current total liabilities) and the facts and methods used to calculate the current net worth.  Finally, the majority holds that the trial court abused its discretion by requiring the physicians to create and produce affidavits in the form of what a lender would have required since a party cannot be forced to create documents that do not otherwise exist solely to comply with a request for production. 

Just as important as the majority's opinion is the concurring opinion by Justice Sullivan.  Justice Sullivan gives a brief history of the development of the law relating to gross negligence and discovery of net worth over the last 25-30 years, and advocates for resolution of conflicting standards of the meaning of  "net worth" and of the law surrounding right to discovery of net worth information.   Interestingly--whether Justice Sullivan is aware of it or not--there have been a few attempts to pique the Texas Supreme Court's interest on this subject.  In fact, I am aware of two cases in which the petition for writ of mandamus was granted, but the parties later settled before an opinion issued, and there is a third petition for writ of mandamus on which Justice Raul Gonzales wrote a dissent from the court's decision to deny review of that petition for writ of mandamus.  Now some 12 years later, it may be that Justice Sullivan has a point; the issue may have simmered long enough in the courts of appeals and it may be time to reexamine it.
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Agreed Venue in a Major Transaction--Not So Fast

Posted on October 16, 2009 by Byron Henry

The Dallas Court of Appeals recently held that the major transaction exception to the prohibition on venue agreements only applies if the value of the transaction is contained in the agreement itself.  In this original proceeding, the parties entered into a settlement agreement involving real estate in which the parties agreed that venue of any dispute would be in Dallas County.  Plaintiff brought suit in Dallas County, the defendant moved to transfer to the county in which the property was located.  The plaintiff argued that venue in Dallas County was proper under section 15.020 of the Texas Civil Practice and Remedies Code because the transaction involved consideration of more than $1,000,000.  The Court disagreed and held that in order for section 15.020 to apply, the "agreement must contain the agregated stated value of the consideration."  Because the settlement agreement did not contain the amount, the trial court abused its discretion by denying the defendant's motion to transfer to the county of mandatory venue.  As a result, the Court granted the defendant's petition for writ of mandamus.  The Court of Appeals decision in In re Togs Energy, Inc. can be found at this link. 

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Targeting Mandamus

Posted on October 5, 2009 by Mike Northrup

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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Order Denying Dissolution of Garnishment Not Appealable

Posted on August 12, 2009 by Byron Henry

The Fort Worth Court of Appeals recently reaffirmed that orders denying a motion to dissolve a prejudgment writ of garnishment are interlocutory and, therefore, not appealable.  Accordingly, the Court dismissed the appeal.  The Court's memorandum opinion in MRI Country Bend Invest. Fund, L.P. v. Capitol Painting & Construction, Inc. dismissing the interlocutory appeal can be found here. 

If you are looking to challenge the denial of a motion to dissolve a prejudgment writ of garnishment, the Dallas Court of Appeals held in In re Texas American Express, Inc. that such an order may be challenged by mandamus.  That opinion can be found here. 

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Dallas Court Says No to Depo of President Bush

Posted on June 15, 2009 by Byron Henry

The Dallas Court of Appeals held that plaintiffs were not entitled to take the depositions of George W. and Laura Bush in relation to the ongoing dispute over the location of the proposed Bush Presidental Library.  The Court stated:

For reasons of comity and the policy considerations discussed in [United States v.]Poindexter, we conclude the decision to allow the deposition of a sitting or former President is not controlled by the standards applicable to apex depositions.   . . . Our review of the record indicates that real parties in interest Vodicka and Tafel did not meet either prong of the Poindexter standard.

The bottom line was that the real parties in interest did not establish Bush's testimony was material or necessary and specifically failed to produce a list of proposed questions for trial court review under a "meticulous standard." Accordingly, the Court granted George W. Bush's petition for writ of mandamus and ordered the trial court to enter an order quashing the depositions of the former President and First Lady.   The Court's opinion in In re President George W. Bush can be found at this link.

 

 

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Mandamus and Supersedeas

Posted on May 26, 2009 by Mike Northrup

The San Antonio Court of Appeals has issued an interesting opinion in a mandamus proceeding involving what is described as an unsuperseded judgment.  In In re Romero, Gonzalez & Benavides, L.L.P., there was a dispute between the law firm of Romero, Gonzalez & Benavides (RG&B) and attorney Mark Cantu regarding the right to a portion of a settlement recovery.  The funds in question were placed into the registry of the court and the trial court subsequently ruled that the funds belonged to RG&B and signed a final judgment to that effect. 

After Cantu appealed, RG&B filed a motion seeking the release of the funds.  The trial court ruled that it would not release the funds while Cantu's appeal was pending.  RG&B filed a petition for writ of mandamus seeking to force the release of the funds.

The court of appeals holds that the trial court abused its discretion because Cantu had filed no supersedeas bond to suspend execution on the judgment.  Appellate Rule 24.1 allows for the filing of a cash deposit in lieu of a bond.   Cantu could have deposited one year's worth of post-judgment interest and court costs to be added to the existing funds on deposit with the court and arguably the judgment is fully suspended.   Or, the trial court could have ordered alternate or lesser security and held that the funds on deposit were sufficient to supersede the judgment.  I have not read the parties' mandamus briefs to know of any of this was tried or argued, but from the court of appeals opinion, it does not appear as the trial court treated its order as an order regarding supersedeas (reviewable by motion rather than mandamus) and it does not appear that the parties asserted that the trial court's order was an order relating to supersedeas.  Nonetheless, it seems as though Rule 24 provides a simple avenue for relief for Cantu.  The Court's opinion may be found here.

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Waiver of Jury Trial Clause: How far does it go?

Posted on April 9, 2009 by Mike Northrup

The Beaumont Court of Appeals has held that a contractual waiver of jury clause does not extend to non-contractual claims brought against non-signatory joint tortfeasors or alleged conspirators.

In In re Wild Oats Markets, Inc., Kuykendahl-WP Retail, L.L.P. ("Kuykendahl") had a lease agreement with Wild Oats Markets, Inc., which contained a contractual waiver-of-jury-trial clause.  Kuykendahl brought suit against Wild Oats for breach of the agreement.  Kuykendahl also sued Whole Foods Market, Inc. for tortious interference with the lease and for engaging in a conspiracy with Wild Oats to commit fraud.

The trial court struck Kuykendahl's jury demand with respect to its claims against Wild Oats, but set Kuykendahl's claims against Whole Foods for a jury trial.  Wild Oats sought mandamus relief, asserting that the contractual waiver necessarily included Kuykendahl's claims against Whole Foods.  Noting that Wild Oats had not shown that Kuykendahl had waived its right to a jury trial on its tortious interference claim against Whole Foods (for conduct occurring prior to Whole Foods' merger with Wild Oats), the court of appeals denied Wild Oats' petition for writ of mandamus.   From the court's opinion, it is unclear how the trial court intended to try claims for fraud and conspiracy when part of them were to be tried to a jury and part were to be tried to the bench.  The court's opinion may be found at this link.

Update: Wilds Oats and Whole Foods (which was not a relator in the court of appeals) have now filed a petition for writ of mandamus in the supreme court. See Case No. 09-0278.  The supreme court has called for a response.

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Challenging Void Orders and Motion to Reinstate

Posted on February 11, 2009 by Mike Northrup

 Void orders of a trial court may occur in a number of different circumstances.  The Corpus Christi Court of Appeals discusses one such circumstance in Silguero v. State.

The trial court dismissed the State's action for forfeiture for want of prosecution and the State timely filed a motion to reinstate, but the motion was not verified.  More than 30 days after the dismissal, the trial court granted the motion to reinstate.  The trial court subsequently rendered a judgment of forfeiture and the Silgueros filed an appeal as well as a petition for writ of mandamus, each asserting that the trial court's order of reinstatement was void.

The Court holds that the trial court's plenary power was not extended by the motion to reinstate because such a motion must either be verified or supported by an affidavit or other evidence serving as an adequate substitute (Note: the Court does not say what an adequate substitute might be).  Because the State's motion did not satisfy this criteria, the motion did not extend plenary power and therefore the trial court did not have jurisdiction to sign its order of reinstatement, making the order void.

The Court also holds that a party affected by a void order may challenge the order by mandamus as the Silgueros did, but if the party also appeals, an appellate court may declare the order void in the appeal.  The Court's opinion may be found at this link.
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Application of TAA Necessarily Excludes FAA

Posted on February 9, 2009 by Byron Henry

The Dallas Court of Appeals recently held that a provision calling for application of the Texas General Arbitration Act necessarily excludes application of the Federal Arbitration Act.  First, the Court held that because the motion to abate was made under  the FAA, the Court had jurisdiction to review the trial court's order by mandamus.  Next, the Court acknowledged the Texas Supreme Court's test that a general choice of law clause will not be read to exclude federal law unless the clause "specifically excludes the application of federal law."  Third, the Court acknowledged that the FAA generally controls transactions involving interstate commerce.  Lastly, the Court held that the parties excluded application of federal law by agreeing that the Texas General Arbitration Act applied.  The Court noted that a general choice of law provision does not specifically exclude  federal law because "the FAA was part of the substantive law of Texas."  Nevertheless, by naming the Texas Act, the parties excluded the FAA.  The Court's opinion in In re Olshan Foundation Repair Co., L.L.C. can be found at this link.

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Mandamus Procedure Changes

Posted on November 25, 2008 by Mike Northrup

With its opinion in In re Butler, the Dallas Court of Appeals reminds us that there has been an important change to mandamus procedure.  Appellate Rule 52.3 was amended effective September 1, 2008, and now requires a certification by the person filing the petition for writ of mandamus that he or she has reviewed the petition and every factual statement is supported by competent evidence in the appendix or record.  Previously, Rule 52.3 required factual statements to be verified by affidavit, which sometimes presented difficulties for appellate counsel who might not have the requisite personal knowledge.

Despite the change in Rule 52.3, the Dallas Court of Appeals reiterates that a sworn or certified copy of the order or other document complained of still must be included in the appendix to the petition.  An affidavit swearing that the order is "to my knowledge" a true copy of the original is an equivocal statement implying something less than personal knowledge and it does not comply with the requirement for sworn copies.  The Court's opinion may be found at this link. 

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Disqualification Requires Notice and Evidentiary Hearing

Posted on November 18, 2008 by Byron Henry

The Corpus Christi Court of Appeals recently held that a respondent is entitled to notice and an evidentiary hearing before having its counsel disqualified.  First, the court determined it had jurisdiction to issue a writ of mandamus against a presiding judge of a administrative judicial district because the judge was acting in the capacity of a district judge when he heard the oral motion to disqualify.  Second, the court determined that a party is entitled to notice and hearing prior to disqualification.  The court stated:

While we agee that the alleged disqualifiying conflict is significant, if the disqualifyig status is proved, we disagee that one party's bare allegation of the conflict is sufficient to establish disqualification as a matter of law when the opposing party is seeking to enforce its right to an evidentiary hearing on the constitutionally protected right to counsel of the party's choosing.

The court of appeals' opinion in In Re Lopez can be found at this link.

 

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Party Ordered to Sign Medical Records Authorization

Posted on November 6, 2008 by Byron Henry

The Amarillo Court of Appeals recently held  that a party may be ordered to sign a medical records authorization in response to a request for disclosure pursuant to TRCP 194.2.  The defendant served a request for disclosures including a request for execution of an authorization to release medical records under Rule 194.2(j).  The plaintiffs argued they could respond by either producing the medical records or executing an authorization permitting  the release of  medical records.  The trial court disagreed and ordered the plaintiffs to execute the authorizations.  Plaintiffs sought mandamus relief from the court of appeals.  In denying the plaintiffs' petition, the court of appeals stated that "the option belongs to the party requesting disclosure, not the one responding to it.  If a legitimate request is sought, then the respondent cannot unilaterally comply with the request by simply delivering selected medical records."  The court's opinion in In Re Soto can be found at this link.  

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En Banc Fifth Circuit Orders Volkswagen Case Transferred

Posted on October 13, 2008 by Byron Henry

"The overarching question before the en banc Court is whether a writ of mandamus should issue directing the transfer of this case from the Marshall Division of the Eastern District of Texas--which has no connection to the parties, the witnesses, or the facts of this case--to the Dallas Division of the Northern District of Texas--which has extensive connections to the parties, the witnesses and the facts of this case."

So begins the majority opinion in a case addressing whether mandamus is appropriate to correct a district court's ruling on a motion to transfer venue pursuant to 28 USC sec. 1404(a).  By a 10-7 vote, the United States Court of Appeals for the Fifth Circuit answered in the affirmative and ordered the case transferred.  The majority and dissenting opinions in In re Volkswagen of America, Inc. can be found at this link.

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Mandamus waiver

Posted on September 30, 2008 by Mike Northrup

The Houston Fourteenth District Court of Appeals has held that a Relator must challenge all possible grounds supporting a trial court's ruling by its Petition for Writ of Mandamus or the Relator waives its complaint.  In In re TCW Global Project Fund II, Ltd., No. 14-08-00116-CV (Sept. 24, 2008), the Relator filed a Petition for Writ of Mandamus complaining of the trial court's order denying a motion to dismissed based on a forum selection clause.  The Court of Appeals holds that TRAP 52.5's requirement that a Relator "may file a reply addressing any matter in the response" is indistinguishable from TRAP 38.3's language providing that the Appellant "may file a reply brief addressing any matter in the appellant's brief."  The opinion of the court may be found here.

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