What happens when a trial court ignores the court of appeals’ mandate?

Answer: The trial judge gets a little visit to the principal’s office.  Last year, in Elite Door & Trim, Inc. v. Tapia,  the Dallas Court of Appeals held that the trial court had erred in requiring Elite Door and Trim to file an amended petition and re-serve the defendant and by refusing to hear Elite Door and Trim’s motion for default judgment.  Following the remand of the case to the trial court, the trial judge dismissed the case for want of prosecution.  Elite Door and Trim then filed a petition for writ of mandamus, complaining that the trial judge had abused her discretion by failing to follow the appellate court’s mandate.  In an unusal move, the court of appeals asked the trial judge to explain the basis for the dismissal.  The trial judge explained that she had re-reviewed the file, determined that the citation and return were defective, and concluded that she had no jurisdiction.

The court of appeals did not take kindly to the trial judge’s dismissal.  The court of appeals held that the trial judge had "no discretion to review, interpret, or enforce the mandate."  The trial judge’s actions on remand are "limited to the issues specified in the mandate" and the scope of the mandate is determined by referring to the opinion as well as the mandate.  The court of appeals stated that in the first appeal, it had reviewed the petition, the citation, and the return of citation and determined that they were proper.  Accordingly, the trial judge had no discretion to decide differently.  The court therefore directed the trial judge to hold a hearing on the motion for default judgment by a date certain, AND to have the entire proceeding recorded by the court reporter.  The court of appeals’ opinion in In re Elite Door & Trim, Inc. may be found here.

The San Antonio Court of Appeals recently reaffirmed that "[t]he fact that a lawyer serves as both an advocate and a witness does not, standing alone, compel disqualification."  Here, the court also restated the well-settled rule that disqualification of counsel is subject to mandamus.  The court reiterated that Rule 3.08 only requires disqualification if the attorney’s testimony is essential to establish a fact on behalf of the client and actual prejudice will result.  The court added that the fact that an attorney notiarized a key document does not require disqualification.  Because the real party in interest failed to establish that the attorney’s testimony was necessary to establish an essential fact, the trial court abused its discretion by disqualifying relator’s counsel.  Accordingly, the court granted the writ.  The court’s opinion in In re Garza can be found at this link.  Our previous blog entry on this subject can be found at this link.

I have been waiting and watching for post-Haygood opinions, and the Amarillo Court of Appeals delivered a great opinion this week with Henderson v. Spann.  In a 2-1 opinion, the panel held that the trial court’s admission of unadjusted medical bills and exclusion of adjusted medical bills constituted reversible error even though the trial court reduced the award to the adjusted amount post-trial. Yes.  Even though the past medical expenses ultimately awarded matched the adjusted amounts, the judgment was still reversed and the case remanded for a new trial.  

Justice Hancock wrote the majority opinion, and I think he got it right.  He provides a thorough analysis of Haygood and notes that the Haygood court rejected the post-trial adjustment method to implement article 41.0105.   

Justice Pirtle concurred in the result (i.e., that reversal and remand were necessary due to the trial court’s erroneous exclusion of the adjusted medical bills).  But he wrote separately to encourage the Texas Supreme Court to revisit whether unadjusted medical bills are per se irrelevant.  Justice Pirtle opined that unadjusted medical bills could be relevant to the question of damages for future medical bills, and that "the use of proper instructions and carefully tailored jury questions" would make it possible to present unadjusted and adjusted medical bills to the jury.

Justice Quinn concurred in the determination that error occurred, but dissented as to the determination that the error was harmful.  Justice Quinn opined that no harm occurred because the trial court reduced the medical expenses awarded, leaving a judgment for only the adjusted amounts.  Respectfully, I believe this approach fails to consider that a jury could decide to award less than the maximum amount of the adjusted bills.  A post-verdict reduction to the maximum amount of the adjusted bills prevents the defense from arguing that even the adjusted amounts are not reasonable and necessary and improperly takes that factual determination away from the jury. 

Links to all 3 opinions can be found here.

Can the failure to announce ready for trial be a basis for dismissal of the suit?  The answer is apparently "yes."

Texas Rule of Civil Procedure 165a allows a court to dismiss a case for want of prosecution for failure of any party seeking affirmative relief to appear for any hearing or trial.  In Ogunfeyimi v. Charalambopoulos, the trial court sent out a notice of trial setting of January 4, 2011.  The notice advised counsel to make an announcement for trial by 10:30A.M. on the Friday of the preceding week and upon failure to announce, the case will be dismissed.  Dallas County Local Rule 3.02 states that if the Plaintiff does not announce by 10:30 A.M. on the Friday preceeding the trial, the court may dismiss the case for want of prosecution.

Counsel for Ogunfeyimi did not contact the court clerk to make an announcement.  He appeared for trial on January 4, 2011, only to discover that the trial court had dismissed Ogunfeyimi’s case under authority of Rule 165a and the court’s inherent power.  At a hearing on the motion to reinstate the case, counsel fo Ogunfeyimi observed that the Friday prior to January 4, 2011 was New Year’s Eve.  The court of appeals concluded that Ogunfeyimi never argued to the trial court that he didn’t think an announcement was necessary because of a belief that New Year’s Eve was a holiday.  The court of appeals went on to point out that New Year’s Eve is not a holiday and recited the fact that Appellee’s counsel had announced ready.  The court of appeals affirmed the dismissal for want of prosecution because Ogunfeyimi had not provided any explanation to show that the failure to announce was not intentional or the result of conscious indifference but was due to accident or mistake.  The court’s opinion may be found here.

The Dallas Bar Association Appellate Law Section will have its monthly luncheon on Thursday, February 16, 2012, at noon at the Belo Mansion.  The topic is "Positioning Your Appeal for Successful Mediation."  Speakers include Vikram Chandhok (Fifth Circuit Conference Attorney), David Keltner (former justice on the Fort Worth Court of Appeals), and Mark Whittington (former justice on the Dallas Court of Appeals).  The CLE has been approved for one hour of credit.  Details may be found here.

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).

Continue Reading Texas Supreme Court confirms that temporary employees are subject to the comp bar

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. 

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.

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.

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.