The San Antonio Court of Appeals reaffirmed that the fact that an attorney for one of the parties may also be a witness does not require disqualification under Rule 3.08 of the Disciplinary Rules of Professional Conduct. In this case, counsel for the relator was a potential witness with knowledge of some arguably relevant facts. The
mandamus
Mandamus–don’t forget the order
By Mike Northrup on
Posted in Mandamus
Texas Appellate Rule 52.3(k)(1)(A) requires that an appendix to a Petition for Writ of Mandamus must contain a certified or sworn copy of any order complained of, or any other document showing the matter complained of. Appellate courts are very strict in enforcing this requirement. So much so that even when the Respondent trial judge does…
Preserving error to complain of death penalty sanctions
By Mike Northrup on
Posted in Mandamus
In a mandamus setting, it can sometimes be a challenge to ensure that you’ve brought forward all the documents and hearing transcripts required to establish an abuse of discretion. The Houston Fourteenth District Court of Appeals has suggested the record in a death penalty sanctions case may need to be fairly comprehensive. In In re …
Mandamus is not the way to challenge denial of arbitration under the FAA
By Mike Northrup on
Posted in Mandamus
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…
Follow Thy Mandate, Redux
By Mike Northrup on
Posted in Mandamus
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
By Mike Northrup on
Posted in Opinions & Judgments
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”
By Mike Northrup on
Posted in Mandamus
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…
Election mandamus is turned away
By Mike Northrup on
Posted in Mandamus
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…
Texas District Courts Lack Jurisdiction to Grant Divorces to Same-Sex Couples
By Byron Henry on
Posted in Opinions & Judgments
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…
Discovery of Federal Tax Returns Limited
By Byron Henry on
Posted in Discovery
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. …