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 challenge the possible certification and placement of Democratic candidate Joseph Ramirez Miller on the ballot.

Under the facts of the case, it appears that the original Democratic candidate for that position was declared "ineligible" by Darlene Ewing as Chair of the Dallas County Democratic Party.  As a result, Ewing certified Miller as the replacement candidate and reported the certification to Bruce Sherbet, the elections administrator for Dallas County.

Upon review of the Election Code, the Dallas Court of Appeals held that the declaration of ineligibility did not rest upon valid grounds because a deficiency in the number of signatures required to put a name on the ballot is a deficiency in the application for office, not a deficiency in eligibility of the applicant.  Notably, however, the Court did not issue a writ of mandamus against either Ewing or Sherbet.  To obtain mandamus relief, Cercone was required to show that he first demanded that Ewing perform her duty not to declare the initial candidate ineligible.  Cercone did not do so.  The Court also declined to grant mandamus relief against Sherbet because Sherbet had no duty to inquire into the validity of the certification of Miller. 

The court’s opinion may be found here.

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).

 

The Tyler Court of Appeals recently confirmed that individual federal tax returns are discoverable to the extent they are relevant and material.  In this case, the tax returns were relevant to the claims and the court found that the parties had agreed to the production of the returns.  But that was not the end of the matter.  The court of appeals also found that not all of the information contained in the tax returns was relevant.  Thus, the court of appeals held the trial court abused its discretion by ordering the tax returns produced in their entirety when only portions of the returns dealing with specific income were relevant.  Accordingly, the court of appeals conditionally granted the petition for writ of mandamus and ordered the trial court to vacate its order that the party to produce all individual tax returns from 1999 to the present in their entirety.  The court’s opinion in In re Guniganti can be found at this link.

The Fort Worth Court of Appeals recently held that an order directing that sanctions be paid prior to final judgment is an abuse of discretion unless the court makes express findings as to why the sanctions do not preclude the sanctioned party from continuing the lawsuit.  In this case, the trial court awarded over $19,000 in sanctions against the plaintiff for discovery abuse payable within thirty days.  The plaintiff filed a writ of mandamus arguing that the sanctions were unwarranted and, even if proper, the sanction should not have been payable within thirty days.  The court of appeals deferred ruling on the discovery issues and amount of the sanctions but held that the order to pay within thirty days was an abuse of discretion because the sanction threatened the plaintiff’s ability to continue the lawsuit.  The Court stated:

If a litigant contends that a monetary sanction precludes access to the court, the district judge must either (1) provide that the sanction is payable only at a date that coincides with or follows entry of a final order terminating the litigation; or (2) make express written findings, after a prompt hearing, as to why the award does not have such a preclusive effect.

The Court denied the plaintiff’s request for mandamus as to the propriety of the sanctions, but granted the petition and ordered the trial court to modify the sanctions order to provide that the sanctions be payable upon termination of the litigation.  The Court’s opinion in In re Spence can be found at this link.

After waiting more than a decade for some guidance from the Texas Supreme Court on the meaning of "net worth" in discovery matters, we thought we were going to get just that–at least until last Friday, that is.  In last Friday’s orders, the high court granted the motion to dismiss filed by the real parties in interest.

I understand that the basis for the motion was that after the supreme court expressed interest and requested briefing, the real parties in interest went back to the trial court and asked the court to vacate its discovery order, which the court did.  The real parties then sought dismissal of the mandamus proceeding, and it appears that the court obliged.

I’ve written a couple of prior entries about the In re Jacobs case.  Those entries may be found here and here, for those curious to read more about Jacobs.   

Beware of using "form" language in an affidavit to establish the affiant’s personal knowledge of the facts.  A statement such as "I have personal knowledge of the facts in this affidavit," may not be adequate.  And the danger of getting it wrong is that the affidavit is legally insufficient.  

A good discussion of how far an affiant must go to establish personal knowledge is found in the Houston Fourteenth Court of Appeals‘ opinion in Valenzuela v. State & County Mutual Fire Insurance Co.   The court of appeals held that a "mere recitation that the affidavit is based on personal knowledge is inadequate if the affidavit does not positively show a basis for the knowledge."  "The affidavit must explain how the affiant has personal knowledge." (emphasis added).

 

Continue Reading Demonstration of Personal Knowledge in Affidavits

Texas Rule of Civil Procedure 171 allows a court to appoint a master in chancery "in exceptional cases, for good cause."  In its In re Behringer Harvard Tic Management Services LP opinion, the Dallas Court of Appeals reminded us of what the Texas Supreme Court said about "exceptional cases" almost 20 years ago.  A court’s busy schedule and general reference to complexities of discovery do not make a case exceptional.  Thus, the court of appeals conditionally granted a petition for writ of mandamus to order the district court in this case to vacate an order appointing a special master to handle in camera review of documents.  The court’s opinion may be found here.

Sometimes when a party gets a default judgment against another party, there’s a rush to make the judgment final.  But as American Express Centurion Bank and American Express Bank found out in In re Daredia, you’ve got to be careful about what you ask for because there are consequences.

In the trial court, the American Express entities sued two defendants, Pervez Daredia and Map Wireless, Inc.  Map Wireless did not answer, while Daredia did.  American Express took a default judgment that contained language reciting that the "judgment disposes of all parties and all claims in this cause of action and is therefore FINAL."  Oops.  Apparently, American Express forgot that there was another party–Daredia.

American Express realized its mistake only too late–after the trial court’s plenary jurisdiction had expired.  At that time, American Express tried to correct the judgment with a motion for judgment nunc pro tunc.  The trial court granted the motion. 

On Petition for Writ of Mandamus, the Texas Supreme Court, in reliance on its opinion in Lehmann v. Har-Con Corp., pointed out that Lehmann did not require that you use the exact language suggested in that opinion–only that the judgment reflect on its face an intent to make it final.  And the court held that this judgment did just that.   The court also reiterated the differences between errors made in entering a judgment, which are clerical, and errors made in rendering a judgment, which are judicial.  All too often state practitioners carelessly mix these concepts, but here we have a prime example of where the distinction is all the difference.  Here, the error was in the rendition of the judgment because the trial court rendered (signed) precisely the judgment American Express asked the trial court to render.

Because Daredia had no adequate remedy by appeal once the trial court set aside the final judgment, the Supreme Court held that mandamus relief was available.  The court’s opinion may be found here.

The Dallas Court of Appeals recently held that a trial court abused its discretion by ordering production of irrelevant net worth information.  The Court first acknowledged that "net worth is relevant and discoverable when punitive damages may be awarded."  The Court  noted the "corollary to that rule is that when punitive damages are not recoverable, information about net worth is not relevant and, as a result, not discoverable."  In this case, a patron had consumed alcohol and drove her vehicle causing an accident and injuring the plaintiffs.  The driver pleaded guilty to two counts of intoxication assault.  The plaintiffs sued the defendant for serving the driver "excessive amounts of alcohol."  The Court of Appeals, citing section 41.005(a) of the Civil Practice and Remedies Code, held that punitive damages were not recoverable against the defendant because the claims arose from the criminal conduct of another.  Because punitive damages were no recoverable, the net worth information was not relevant.  Accordingly, the Court conditionally granted the petition ordering the trial court to vacate its order compelling production of net worth information.  The Court’s opinion in In re Islamorada can be found here.

Often trial judges sign orders that are not final either because they fail to dispose of all parties and issues before the court, or the written order fails to reflect the trial court’s intent that the order be a final, appealable judgment.  That was the case in Hodo v. State, and the Amarillo Court of Appeals sought to remedy the lack of finality by taking the rare move of invoking Appellate Rule 27.2.

The trial court signed an order allowing the withdrawal of funds from an inmate trust account, a procedure governed by Texas Government Code Section 501.014.  The order of withdrawal directed the Texas Department of Criminal Justice Institutional Division to withhold funds from Hodo’s trust account.  Hodo moved to rescind the withdrawals, alleging that he had been denied due process.  After an appeal to the Texas Supreme Court, the Supreme Court held that an inmate is entitled to notice and an opportunity to be heard, and the case was remanded.

It appears that further proceedings were had in the trial court following the remand.  But it does not appear that the trial court made any ruling on a motion to confirm, modify, correct, or rescind the prior withdrawal notification.  Hodo filed another appeal.  The Amarillo Court of Appeals notes that the lower court’s judgment did not assess costs.  The court of appeals concludes that it could not tell whether the trial court intended to finally dispose of all claims (making the orders final and appealable), and the court invoked Appellate Rule 27.2.  Using Rule 27.2, the court abates the appeal so as to allow Hodo to obtain the missing final, appealable order.  The court’s opinion may be found here.