Where can you go to explore the cultures of other countries, visit with Mickey and Minnie, ride stomach-turning rides AND get Appellate CLE credits? The DRI‘s Appellate Advocacy Seminar on March 10-11, 2011, in Orlando, Florida, of course. The organizers have put together a live moot court demonstration with feedback from a panel of
New Year = New Officers for Dallas Appellate Law Section
At its December meeting, the Dallas Bar Association‘s Appellate Law Section elected a slate of officers for the year 2011. Congratulations goes to the following persons who were elected upon unanimous voice vote:
Ben Mesches: Chair
Jeremy Martin: Vice-chair
Byron Henry: Secretary
Michelle Robberson: Treasurer
Congratulations should also go to
Open Records and Declaratory Relief
The City of Dallas challenged the standing of the Dallas Morning News to sue for mandamus relief under the Texas Open Records Act because two Morning News reporters had made the original requests for public information, and not the Morning News itself. Noting that a "requestor" can be the Morning News acting through its agents
Mandamus is not the way to challenge denial of arbitration under the FAA
Once upon a time, if there was doubt about whether an arbitration agreement was subject to the Federal Arbitration Act (FAA), a party complaining of a denial of a motion to compel arbitration had to file (1) an interlocutory appeal AND (2) a petition for writ of mandamus, then seek to consolidate the two separate
When to Raise Summary Judgment Grounds
A party seeking summary judgment must raise all its grounds in the motion itself; raising a ground for summary judgment at the summary judgment hearing will not support the summary judgment if the judgment is attacked on appeal.
In Ritchey v. Pinnell, Brenda Ritchey brought suit against Steven and Amy Pinnell after Ritchey
Follow Thy Mandate, Redux
I recently wrote another blog entry about what happens when the parties or the trial court fail to follow the appellate court mandate. Now, here’s another:
In a prior appeal, the Fort Worth Court of Appeals held that the Plaintiff’s expert report was adequate as to one of two claims and inadequate as to the second claim. The
Follow Thy Mandate
A couple of opinions–one state and one federal–reiterate the effect of an appellate court’s mandate following remand of the case back to the trial court.
The Fifth Circuit Court of Appeals held that a prior decision decertifying a class certification "foreclosed the re-litigation of the class certification" on remand to the trial court. Gene and Gene, L.L.C. filed suit against BioPay, L.L.C. alleging violation of the Telephone Consumer Protection Act of 1991 due to the sending of unsolicited advertisements from one fax machine to another. After the district court certified the class, BioPay filed an interlocutory appeal. The Fifth Circuit reversed the certification, held that the issue of consent precluded certification, and remanded to the district court "for further proceedings not inconsistent with this opinion." After remand, Gene & Gene discovered a searchable datebase that it contended established a common method of establishing the issue of consent. Gene & Gene moved to recertify and the district court granted recertification. A second appeal followed.
Two judges on the Fifth Circuit panel held that the law-of-the-case doctrine or mandate rule foreclosed the district court from reconsidering the certification. Alternatively, the two-judge majority held that the evidence discovered on remand was not substantially different from the evidence before the court in the first opinion. The third judge on the panel concurred in this latter holding. The court’s opinion in Gene & Gene, L.L.C. v. BioPay, L.L.C., may be found here.Continue Reading Follow Thy Mandate
New Trial Granted Based on “Inherent Power to Sanction”
Last year, the Texas Supreme Court shook things up a little with its opinion in In re Columbia Medical Center, in which it granted a petition for writ of mandamus and ordered a trial court to state the reasons for granting a new trial. Prior to that time, mandamus relief was not available to a
Court’s inherent authority doesn’t extend to arbitrations
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
Election mandamus is turned away
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