The Texas Supreme Court will be holding oral arguments this Wednesday, Oct. 16, 2008, in Dallas at the SMU Dedman School of Law.  The following three cases are set for oral argument beginning at 9:00am:

Entergy Gulf States, Inc. v. Summers, No. 05-0272; from Jefferson County, Ninth Court of Appeals (09-04-00152-CV, __S.W.3d__, 12-30-04) (originally argued Jan. 24, 2007, with opinion delivered Aug. 31, 2007, and rehearing granted April 4, 2008) [involving whether a premises owner who hires an independent contractor and provides workers-compensation insurance for the contractor’s employees can be a “statutory employer” for workers comp purposes.]
 

07-0541, TXI Transportation Co., et al. v. Hughes, et al., No. 07-0541; from Wise County, Second Court of Appeals (02-04-00242-CV, 224 S.W.3d 870, 05-25-07) [involving (1) whether evidence that a truck driver involved in a fatal truck-SUV collision was an illegal immigrant was properly admitted for impeachment purposes; (2) whether the trial court improperly overruled a Batson challenge over the only Hispanic venireman struck; (3) whether the trial court improperly excluded defense testimony from a state trooper regarding a tire blowout that might have contributed to cause the accident or cell phone records showing an incoming call to the SUV driver at the time of the accident; and (4) whether the trial court improperly allowed claims for wrongful death of unborn children (the verdict on those claims was not included in the judgment)

City of Dallas v. Abbott; No. 07-0931, from Travis County, Seventh Court of Appeals (07-06-00161-CV, __S.W.3d__, 08-13-07) [whether the Public Information Actions 10-day deadline for requesting an attorney general’s opinion on records disclosure is postponed while the city awaits clarification on the records requested and whether the city can be compelled to disclose privileged information if the request for the attorney general’s opinion was not submitted by the statutory deadline]

If you cannot attend in person, the arguments will be recorded and posted on the supreme court’s website for later viewing.

The Dallas Court of Appeals vacated a portion of a district court’s order directing the Office of Attorney General to remit payments to a private company that collects and disburses child-support payments for a fee.  Pursuant to Texas Government Code sec. 22.002(c), the court of appeals held that only the Texas Supreme Court has the authority to issue a writ of injunction against officers of the executive branch.  The court found that the portion of the order directing the OAG to remit payments to the private company was void.  The court’s opinion in In the Interest of A.B., Jr. can be found at this link.

The Fort Worth Court of Appeals recently held that participating in board meetings via telephone with Texas residents is sufficient to establish specific jurisdiction in Texas. The court of appeals distinguished the Texas Supreme Court’s opinion in Michiana Easy Livin’ Country, Inc. v. Holten as follows:

“Although the supreme court has disapproved opinions holding that . . . specific jurisdiction is necessarily established by allegations or evidence that a nonresident committed a tort in a telephone call from a Texas number, Michiana, 168 S.W.3d at 791 (emphasis added), it has not held that telephone calls are never sufficient to establish minimum contacts.”

Like Michiana, the Texas plaintiffs in this case telephoned the out-of-state defendants. Unlike Michiana, in which the plaintiff made one phone call, “this case involves many telephonic board meetings at regular intervals over a span of years.” This is a close case.  But, at the very least, it stands for the proposition that phone calls alone can constitute sufficient minimun contacts to establish specific jurisdiction.  A copy of the court of appeals’ opinion in Glencoe Capital Partners II, L.P. v. Gernsbacher can be found at this link
 

The Texas Supreme Court recently reversed a decision by the Houston Fourteenth District Court of Appeals, which held harmless the trial court’s admission of evidence related to the defendant’s wealth.  Reliance Steel & Aluminum Co. v. Sevcik, No. 06-0422, 2008 Tex. LEXIS 861 (Tex. Sept. 26, 2008). 

Continue Reading Evidence of Defendant’s Wealth Held Harmful

For the purpose of determining diversity jurisdiction, is a limited liability company a citizen of the state where it is organized or is it a citizen of the states of which its members are citizens? 

In an issue of first impression, the Fifth Circuit, in Harvey v. Grey Wolf Drilling Co., held that a limited liability company, for diversity jurisdiction purposes, depends on the citizenship of its members.

In Grey Wolf, the plaintiffs, Louisiana residents, sued Grey Wolf in the Eastern District of Louisiana on diversity jurisdiction grounds. Grey Wolf was a Texas LP with members that included an LLC with members in Texas and Nevada, but was organized in Louisiana. The district court applied 28 U.S.C. § 1332(c), a statute governing citizenship of corporations, to the LLC, and held that (1) an LLC’s citizenship is determined by where it is organized; and (2) that the parties lacked diversity jurisdiction.

The Fifth Circuit reversed the district court’s opinion because:

·          Every Circuit Court that had dealt with the issue held that citizenship would be determined by the LLC’s members;

·          The district court’s holding was inconsistent with Supreme Court jurisprudence;

·          The district court’s opinion conflicted with § 1332(c)(1)’s language;

·          Louisiana law clearly distinguished LLCs from Corporations.

*For more insight on the district court’s reasoning, see Debra R. Cohen’s article "Limited Liability Company Citizenship: Reconsidering an Illogical and Inconsistent Choice", 90 Marq. L. Rev. 269 (2006).

Continue Reading Determining Diversity of Jurisdiction for Limited Liabililty Corporations

A divided en banc Fourth Court of Appeals held that a court may award sanctions for both expenses and attorney’s fees as well as for inconvenience and harassment and order them paid to the moving party.  Applying the Texas Supreme Court’s recent opinion in Low v. Henry, the majority held the trial court had broad discretion to deter future misconduct and that the list of sanctions in section10.004(c) was not exclusive.  The dissents disagreed and argued that the additional sanction for inconvenience was improper and that the list of availble sanctions did not include payment of a penalty to the opposing party.  The majority opinion in Unifund CCR Partners v. Villa can be found here.  The dissenting opinions are here and here.

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.