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, the Dallas Court of Appeals rejected the City’s argument and concluded that the evidence showed that the requestors made their requests in the course and scope of their position as reporters for the Morning News.

Addressing a separate issue, the court of appeals held that the trial court should have sustained the City’s plea to the jurisdiction as to the Morning News’ request for declaratory relief.  Because the Morning News’ petition for writ of mandamus already encompassed the issues that were part of its request for declaratory relief, the court of appeals held that declaratory relief was not available.

Finally, the appellate court sustained an award of attorney’s fees to the Morning News because the Morning News had already substantially prevailed (in a prior appeal) on its request for relief under the Open Records Act.

The court’s opinion in City of Dallas v. Dallas Morning News may be found here.

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 proceedings.  The separate mandamus is not required since September of 2009, when Texas Civil Practice and Remedies Code Section 51.016 went into effect and allowed for an interlocutory appeal of agreements subject to the FAA.  (why this statute was not located with the other interlocutory appeal provisions is a mystery to me).

The El Paso Court of Appeals points out the implications of the adoption of Section 51.016 on mandamus practice in In re H.D. Vest Inc.  In short, the court denied a petition for writ of mandamus because the court concluded that the Relators have an adequate remedy by appeal under Section 51.016.  The court’s opinion may be found here.

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 purchased a home from the Pinnells and learned that she could not get a certificate of occupancy because many of the home improvements made by the Pinnells did not meet code requirements.  Ritchey asserted claims for breach of contract and real estate fraud.  The contract for purchase contained an "as is" clause. 

The Pinnells sought summary judgment against Ritchey’s claims.  With respect to the fraud claim, the motion asserted that there was no evidence Steve Pinnell knew the alleged misrepresentations were false and there was no evidence the misrepresentations induced the sale.  As to the breach-of-contract claim, the Pinnells argued that the "as is" clause defeated the claim.  At the summary judgment hearing, the argument arose that the "as is" clause defeated causation as to the fraud claim.  The trial court granted the Pinnells’ motion on all claims and Ritchey appealed. 

On appeal, the Texarkana Court of Appeals holds that the "as is" clause cannot be used to support the summary judgment on the fraud claim since that ground was not raised in the motion for summary judgment.  The court otherwise holds that statutory fraud does not require that the declarant know that the misrepresentation was false and that there was some evidence the false representation induced the sale.  Thus, the court reversed the summary judgmetn on the fraud claim.  However, the court held that the "as is" clause defeated the breach of contract claim and the court affirmed the summary judgment on that claim.  The court’s opinion may be found at this link.

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 appellate court’s mandate affirmed the portion of the trial court’s judgment that denied the doctor’s motion to dismiss as it pertained to the claim on which the expert’s report was deemed adequate.  However the judgment was reversed as to the claim on which the report was deemed inadequate and the case was remanded for consideration of whether the trial court should allow the plaintiff to cure the deficiency in the expert affidavit.  Following the remand, the plaintiff elected not to cure the affidavit as to the claim on which the report was deemed inadequate.  The defendant doctor then sought dismissal of all claims on the grounds that the plaintiff had not amended the expert report.  The trial court granted the motion and dismissed all the claims against the doctor.

The plaintiff filed a petition for writ of mandamus and asserted that the trial court had failed to carry out the appellate court’s mandate insofar as it related to the affirmed portion of the trial court’s judgment.  The court of appeals granted the petition for mandamus and held that a second interlocutory appeal was not required because the plaintiff was entitled to have the trial court give effect to the judgment and mandate issued.  The court’s opinion in In re Richardson may be found here.

Over the summer, Byron Henry and I wrote an article discussing the emerging majority rule in Texas for applying section 41.0105, the paid vs. incurred rule for medical care expenses.  Our goals were two-fold: (1) to update the appellate bar on the current state of the law on this issue and (2) to provide suggestions for how to deal in practice with various pitfalls we see with the emerging majority rule.  Byron and I have practiced on both sides of the docket, so we did not intend those suggestions to be defense-oriented.  Rather, as appellate practitioners, we have seen how the current majority rule is inherently flawed in practice and creates dangers for plaintiffs and defendants alike.

Byron and I felt the topic was especially timely because the Texas Supreme Court had recently granted the petition in one of the cases emerging in the majority — Escabedo v. Haygood, 283 S.W.3d 3 (Tex. App.—Tyler 2009, pet. granted).  The Court heard argument on September 16, 2010.

We received a good deal of positive feedback after the article was published in the Appellate Advocate.  But we also heard concerns from some that our article could influence the Texas Supreme Court’s decision in Haygood to the detriment of Petitioner.  I was humbled to think an article I was involved with could have such an impact, but I was also excited to be part of a timely and important debate that will impact how we all practice.

Following the Haygood argument, John Gsanger and Paul Gold prepared a response to our article, which was published in the current edition of the Appellate Advocate.  Byron and I would like to briefly reply to that article here.

Continue Reading Section 41.0105 — The Debate Continues

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

The Dallas Court of Appeals recently held that notice of trial sent to an incorrect address constitutes error on the face of the record sufficient to warrant reversal on restricted appeal.  Here, the trial court clerk sent notice of trial to the Plaintiffs at an address containing an incorrect suite number even though the file contained evidence of the correct address.  The notice of trial was returned "Attempted — Not Known."  Subsequently, the trial court failed to send notice of the dismissal pursuant to TRCP 306a(3).  The court of appeals stated that "[f]ailure to give this notice is also a violation of the [plaintiffs’] due process rights and constitutes error on the face of the record."  Consequently,the court reversed the dismissal of the plaintiffs’ claims.

There are two lessons to be learned from this case.  First, check and double-check your addresses.  If you do not trust the clerk, cross-serve required notices on all parties in the case.  Second, all hope is not lost if a party misses the deadline to file a motion for new trial or notice of appeal.  Restricted appeals are alive and well and can be a last resort to attack adverse judgments.  The court’s opinion in Smith v. Shipp can be found at this link.    

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 litigant that suffered the granting of a new trial.   But one question raised by In re Columbia Medical Center‘s result is "to what effect?"  Once the trial court states its reasons, is that the end of the discussion?  Or can the reasons be used as a basis to challenge the new trial order itself?

The El Paso Court of Appeals was recently presented with that issue in In re Toyota Motor Sales, U.S.A. Inc.  Following a jury verdict in favor of Toyota, the trial court entered judgment on the verdict.  The Plaintiff filed a motion for new trial, seeking a new trial "in the interest of justice" because of evidence presented and arguments made relating to whether the driver of the Toyota had been wearing his seatbelt at the time of the accident.  The trial court granted the motion for new trial "in the interest of justice" "because Defendant willfully disregarded, brazenly and intentionally violated the Court’s orders in limine, evidentiary rulings, instructions and orders concerning a crucial evidentiary issue relating to seat belt use."  In what appears to be an alternate basis for the new trial, the court invoked its inherent authority to sanction, and referred to the same conduct by Defendant as the basis for a new trial.

Toyota sought mandamus relief to compel the trial court to vacate the order, arguing that the grounds were not sufficient.  The court of appeals concluded that In re Columbia does not authorize such relief and that the trial court’s order satisfies In re Columbia.  The court overruled Toyota’s issue challenging the new trial, and then separately declined to address whether Toyota has an adequate remedy by appeal.  The court’s opinion may be found here.

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 representing New Century for conduct that had occurred during an arbitration proceeding.  Relying on established precedent, the appellate court observed that inherent power does not extend to collateral proceedings that do not threaten the court’s own judicial authority or proceedings.  The Fifth Circuit expressed its concern that a district court might use its inherent power to sanction as a means to seize control over substantive aspects of arbitration.  The Court went on to set out two means by which a party could seek redress for wrongdoing during an arbitration proceeding after the conclusion of the proceeding: (1) the grievance process, or (2) reopening the proceedings.

The Court’s opinion may be found at this link. 

I have said on various occasions (during admittedly nerdy conversations with colleagues) that this expert opinion or that piece of evidence surely constitutes no evidence as a matter of law and that no court could possibly see it differently.  But we all know that it is never quite that easy and never that clear cut.  The Beaumont Court of Appeals’ recent 2-1 opinion in Pink v. Goodyear Tire & Rubber Company illustrates this point.

In Pink, the panel reversed a no evidence summary judgment rendered for Goodyear.  That reversal was based, in part, on the court’s determination that the following expert testimony presented by Pink constituted some evidence of causation: 

I was Veryl Pink’s treating oncologist. Mr. Pink was diagnosed with renal cell carcinoma, which was confirmed by biopsy. The ultimate cause of Mr. Pink’s death was the progression of the disease.

Based upon reasonable medical probability it is my opinion that the cause of Mr. Pink’s renal cell carcinoma was exposure to chemicals, more than likely benzene. In rendering this opinion I have reviewed Mr. Pink’s medical records, the deposition testimony of Mr. Pink and three of his coworkers, the deposition of Dr. Radelat, and scientific literature.

Continue Reading Another disagreement over what constitutes no evidence of causation