East Texas Appeals Lawyer & Attorney : Jeff Rambin Law Firm : Civil and Criminal Appeals : 12th Court of Appeals, Tyler, Texas

In re Tieri (Published): A two front custody battle.  On the one hand, there's New Jersey where the couple and the children lived for most of their lives.  On the other, there's Texas, where the mother, kids, and for a brief period, father lived as the marriage unraveled.  The father files for divorce in New Jersey and he gets custody there.  The mother files in Texas, and she gets custody here.  So it comes down to which court has jurisdiction.  It's a Uniform Child Custody Jurisdiction and Enforcement Act case raising two questions:

First, under the six month consecutive residency requirement of Tex. Fam. Code Ann. § 152.102(7), does a temporary absence of the children from the State of Texas a.) not matter as long as it meets the “temporary” threshold; b.) “freeze” the six month clock until the children come back to Texas; or c.) require a restart of the clock at zero?

The answer is most likely “c,” although parts of the decision could be read to mean “b”.

Second: If a custody proceeding is voluntarily dismissed in one state, can another state assume jurisdiction over custody as though the first custody proceeding had never been filed?

No.  Even though the case has been dismissed, the first state retains jurisdiction unless, along with the dismissal, it entered a specific finding that it has lost jurisdiction (for example, because neither parent lives in the state anymore).

2006

• January: Mother brings the kids from New Jersey to Texas.
• February: Father files divorce in New Jersey.
• March: While the mother and children are still in Texas, the New Jersey court awards custody to the father.
• April: Mother and children return to New Jersey because they’ve been ordered to appear at a hearing.  Other hearings are set, and they stay in New Jersey for somewhere between 22 to 26 days.  Mother and father reconcile.  Father dismisses New Jersey divorce.  All go to live in Texas.
• August: Father leaves Texas. Mother files for divorce in Texas.
• September: Texas court denies father’s special appearance. Asserts jurisdiction.
• October: Texas court names mother sole temporary managing conservator, denies visitation to father pending further order.

2007

• February: New Jersey court, on father’s petition, reinstates the New Jersey divorce.  New Jersey court reopens case on grounds that the mother had fraudulently induced the father to dismiss it. In other words, she never had any real intention of reconciling.  New Jersey court acknowledges that the Texas court has asserted jurisdiction, and refuses to rule on custody unless the Texas court relinquishes jurisdiction.  As for itself, the New Jersey court does not enter an order relinquishing jurisdiction or finding that the circumstances have (or had at any point in this process) deprived it of jurisdiction.
• April: Father files a motion in Texas to dismiss under UCCJEA.
• August: New Jersey court grants the divorce without deciding custody.  Texas court holds a telephonic hearing including both courts and counsel from both states.
• September: Texas court denies the father’s UCCJEA motion, holding that, at the time of the Texas divorce, the children had lived with the mother for six months, and in Texas for eight months (considering the their April ’06 presence in New Jersey as temporary).
• December: The father files a petition for writ of mandamus in Tyler.

The record is silent about what happened between September and December. The opinion doesn’t discuss issues of waiver and delay, so I’m guessing that there were motions for rehearing before the trial court. In any event, the Tyler court reviews the questions of law de novo. Since the children went back to New Jersey for a period, and since the New Jersey court didn’t enter an order waiving jurisdiction as part of the voluntary dismissal, New Jersey, not Texas, retains exclusive jurisdiction.
 

• Email This
• Print
• Comments
• Trackbacks (1)

In Friday's Orders of the Supreme Court of Texas, there was one Tyler case, In re Frost.  It's the divorce case where the husband and his attorney went into the wife's residence when the wife was out of town and conducted some "do it yourself" discovery. 

The wife had changed the locks on that residence.  So, in order to get into the house, the husband got a locksmith to make him a duplicate of the new key.  The wife figured that the changed locks (and the fact that the husband didn't ask her for a key) showed that the husband and his attorney should not have gone into the house.  But since they did, she figured that the husband's attorney had made himself a fact witness, and should be disqualified from continuing as counsel.

The trial court agreed and disqualified.  The Tyler court didn't and, via mandamus, reversed the trial court.  The Tyler court ruled that there were no temporary orders in place specifically concerning the residence, and that the wife had failed to show how she would be harmed by the husband's attorney continuing in his advocacy role.  The wife tried to get the Supreme Court of Texas to reinstate the trial court's decision.  The Supreme Court requested a response from the husband, but ultimately denied the wife's request.

This case, by far and away, has generated more interest than any single case on the blog.  It's easy to see why.  Everyone, lawyer or not, understands the drama inherent in divorce.  And the lawyers I've spoken to were interested because disqualification was at stake, and because this decision bears on what is and isn't fair game in family law cases.  So, if you're just plain interested, or if you've got a case with similar discovery or disqualification issues, here are the redrafted petition, the response, and the reply.

In the interest of full disclosure, I was involved behind the scenes in the redrafted petition.  I offer my congratulations to J. Bennett White, the husband's counsel, and to his associate, Chris Massey, who worked on the briefing before the Supreme Court.

• Email This
• Print
• Comments
• Trackbacks

The only case on July 17th's Supreme Court  of Texas Order List is a denial of mandamus that leaves open some questions on a trial court's ability to grant "partial" new trials.  It's In re Mary Jane Barton, a case out of the 7th Court of Appeals in Amarillo.  But there's an East Texas connection. 

A couple got divorced in Potter County, Texas (Amarillo).  Apparently, that's where they lived during their marriage.  The divorce decree made the husband and wife joint managing conservators of their child.  The wife was given the authority to pick the child's primary residence.  But that authority was limited to the counties in the Amarillo area so long as the husband lived there.

This was a problem for the wife.  While the divorce was pending, she and the child had moved to East Texas.  Specifically, Gilmer, Upshur County, Texas. (Home of the Yamboree)  The opinion doesn't say, but I'd bet that's where the wife's family is from.  In the month after the divorce decree was entered, she didn't exactly go rushing back to Amarillo to find a job and a house.  Which is to say: She stayed in Gilmer.

Before the Potter County trial court's jurisdiction expired, the husband moved for, and got, a partial new trial of the divorce on the limited issue of which parent would get to establish the primary residence of the child.  The wife objected, and eventually filed a mandamus proceeding, on grounds that the trial court couldn't reopen that issue without also reopening the issue of the geographic restrictions on that right.  The opinion doesn't say what the wife wanted to do on the geographic issue.  Maybe she wanted the husband to be pinned down to a particular Amarillo area location.  Or maybe she wanted a complete role reversal, as in: "OK, hubby, you get to pick the primary residence, but it has to be in Upshur County."

The Amarillo court notes that the wife was tardy in bringing her mandamus action.  That alone would justify their denial of her mandamus.  But the Amarillo court also reaches the merits, stating that the trial court did not abuse its discretion by granting a new trial just on who was going to pick the child's residence without reopening any geographic limitations on where that pick could be made.

The Supreme Court of Texas, without issuing an opinion, denied the wife's attempt to reverse the Amarillo court.  So the trial court's judgment stands.

The issue of partial new trials has vexed appellate courts.  There's a Rule of Appellate Procedure on the subject, but the rule is more of a starting point than a finish line.  Tex. R. App. P. 44.1(b) provides that:

If the error affects part of, but not all, the matter in controversy and that part is separable without unfairness to the parties, the judgment must be reversed, and a new trial ordered only as to the part affected by the error. 

To me, that's basically a statement of "use your common sense."  Which isn't much help because one person's common sense is another's lunacy.  Rule 44.1(b) provides one specific example:

The court may not order a separate trial solely on unliquidated damages if liability is contested.

That's very helpful.  But if you sense the potential for a partial new trial in your case, get ready for some research and some briefing, because the rest of the examples are in the caselaw like In re Barton.

• Email This
• Print
• Comments
• Trackbacks

In re ADM Investor Services, Inc. (Published): Forum selection clause waived, at least according the the majority.  Mandamus relief denied.  The dissent would find no waiver, and would have granted mandamus.  This is a hot topic in Austin, so either way, there's a good chance that the Tyler court won't have the last word.

Prescott signed an agreement with Texas Trading (an agent for ADM)  for ADM to trade commodities for Prescott on the Chicago Board of Trade.  Prescott's account went 50 grand into the red.  ADM got that out of the hide of Dawson, the owner of Texas Trading. Dawson then successfully sued Prescott for that amount.

Prescott then sued Texas Trading and ADM for being lousy traders.  By virtue of the agreement that Prescott had signed, both Texas Trading and ADM could have asserted a forum selection clause that would have sent the matter to Illinois.  But instead Texas Trading just asked that venue to be transferred from one Texas county Rains to another (Hopkins).  ADM sat on its hands while Texas Trading got its venue transfer.

Generally speaking "[e]nforcement of forum selection clauses is mandatory unless the party opposing enforcement clearly shows that enforcement would be unreasonable and unjust, or that the clause was invalid for such reasons as fraud or overreaching."  Of course, "unreasonable and unjust" could mean a lot of things.  It's a matter of sifting through prior cases to figure out what those terms really mean. In particular, arbitration cases, because the Texas Supreme Court has held that the standards for waiver of arbitration clauses are "analogous" to the standards for forum selection clauses.  See this earlier post on an interesting arbitration decision by the Tyler court.

The majority all but accuses ADM of teaming up with Texas Trading to force Prescott into litigating in two forums.  That's dirty dealing that waives the forum selection clause.

The dissent basically says: "Like it or not, the law on forum selection lets ADM do exactly that."  The dissent doesn't really take issue with the majority's statement of the law, just its application to these facts.  The dissent points to Supreme Court of Texas cases where parties let litigation roll along far longer than ADM did here without waiving the right to compel arbitration.

If memory serves, this is only the second Tyler case this year with a dissent. The first one is here.

• Email This
• Print
• Comments
• Trackbacks

Palestine Herald Press v. Zimmer (Published): High school football coach's defamation suit dismissed because a column calling his end-of-game victory dance unsportsmanlike and "obscene" was not a matter subject to "objective verification" and hence, not actionable.

I don't know if I'd be able to recognize the place if East Texans ever stopped being a little crazy about their high school football.  Fear not.  Craziness still reigns.

Jacksonville and Palestine have a long rivalry.  In 2006, the game was in Palestine.  The home crowd's hearts were broken when, down by two, their Wildcats' last second field goal attempt was blocked.  Naturally, the visiting Jacksonville Indians erupted in jubilation.  Including the D-Coordinator, who (in the words of the decision)  ...

ran onto the field with his right arm overhead ... leapt into one of his players' arms near the middle of the field between the twenty and thirty yard lines ... [then, after the player let him go] turned generally toward the Palestine team's sideline as he pumped his right fist in the air once ... then raised both fists to the side of his head, and abruptly thrust his arms downward to his hips three times while slightly bending his knees and sidestepping toward the thirty yard line ... [all the while] yelling with elevated excitement as he motioned ... then ....

There was a little more, but you get the idea.

The sports columnist for the defeated home team took umbrage.  He wrote a column calling out the coach.  The coach could have blown off the column.  Or he could have issued a statement that he was caught up in the moment and didn't intend to offend.  Instead, the coach sued.  The suit went nowhere because the columnist was entitled to express his opinion. 

As any fan of NBC"s Friday Night Lights would tell you, Coach Taylor (played by Kyle Chandler and pictured above) wouldn't have done the dance.  And wouldn't have sued.

• Email This
• Print
• Comments
• Trackbacks (1)

In re Sames (Published Memo):  An attorney's effort to get two attorney-members of the District 2B Grievance Committee disqualified was denied a hearing by the trial court. On mandamus, the Tyler court rules that the trial court had discretion to deny the hearing.  There was no point in the trial court hearing a motion that was doomed to failure.  The attorney had filed a disqualification motion based on Tex. R. Civ. P. 18a, which deals with judges, instead of Texas Disciplinary Rule 2.06, which deals with the disqualification of grievance panelists. 

• Email This
• Print
• Comments
• Trackbacks

In re City National Bank et al (Published): Venue case out of Rusk County.  Wyatt Norman has a car business on some land in Gregg County.  He got behind on his note, which was secured by the land.  The bank sent out notice that foreclosure was imminent.  Norman raced to the Rusk County courthouse to stop the foreclosure, suing City National Bank, a loan officer, and the loan officer's assistant.  The bank and its personnel bring a mandamus action to get venue transferred to Gregg County pursuant to Tex. Civ. Prac. & Rem. Code Section 15.011 (mandatory venue in county where land is located in suits over land).

Norman's basis for venue in Rusk County is that the assistant to the bank's lending officer resides in Rusk County.  Norman makes a litany of allegations against the bank, the loan officer and the assistant.  Norman asserts that all of these allegations transform the fundamental nature of the suit.  In his view, it is no longer a suit about land.

The Tyler court disagrees.  In the words of the Tyler court, the application of the mandatory venue statute is determined by "the ultimate or dominant purpose of a suit ...not [by] how the cause of action is described by the parties."  The whole purpose of Norman's allegations is to keep the bank from foreclosing on the land in Gregg County.  It's about the land.  The suit belongs in Gregg County.

Continue Reading...

• Email This
• Print
• Comments
• Trackbacks

In re Frost (Published Memo): The Tyler court reinstates a trial attorney who had been disqualified by the trial court.  In a heated divorce case, the husband thought the wife was lying about documents that she said had been "destroyed" before the divorce was filed.  The husband was sure those documents still existed, and were in the marital residence his wife was now occupying.  There were no temporary orders concerning the residence.  Husband and his attorney considered that house fair game.  So, when the wife was out of town, the husband, his attorney and his attorney's assistant went in. They videotaped and photographed as they went.  They found "destroyed" documents.

The husband moved for sanctions over the wife's lying.  In response, the wife moved to disqualify the husband's attorney.  The wife contended that the attorney's presence in the house made him a "material witness."  The trial court agreed and disqualified.  The husband challenged that ruling via mandamus.

Continue Reading...

• Email This
• Print
• Comments
• Trackbacks (2)

In re Energy Transfer (Published): In a condemnation case, unless and until someone objects to the commissioners' award, mandamus is the only way to complain of a judgment that doesn't match what you think the commissioners ordered.

As long as condemnation domain cases remain before the commissioners, they are an administrative proceeding. Once the commissioners make an award, the trial court must enter judgment conforming to the award as an administrative act. The case only becomes a judicial proceeding if and when a party objects to the commissioner’s award.

Energy transfer felt that the landowner improperly presented (and the trial improperly signed) a judgment that had some “extras” that were not awarded by the commissioners. In particular, an abandonment clause, an indemnity clause, and a provision that Energy Transfer would be perpetually liable for restoration of the property. Even though Energy Transfer didn’t like those clauses, they didn’t want to object to the commissioners’ award and thereby open the matter up to a full-blown jury trial.

But since Energy Transfer did not invoke a judicial proceeding, they couldn’t pursue the judicial remedy of appeal to complain of the extras. Instead, mandamus was the only remedy available. On mandamus review, the Tyler court of appeals found no evidence that the commissioners had considered the extras. And since they weren’t considered by the commissioners, the commissioners could not have included them in their award. In the words of the Tyler court of appeals: “where a trial court fails to enter a judgment conforming to the commissioners’ award in a condemnation proceeding, that judgment is void.” Mandamus issues.

• Email This
• Print
• Comments (2)
• Trackbacks

In re State (Published): The State brought a mandamus to disqualify defense counsel. The same defense counsel represented two allegedly drunken drag racers A and B. There’s a potential for conflict in that dual representation. But that potential never materialized into an actual conflict because: 1.) the State’s non-disclosure of B would have kept B off of the stand in A’s trial, and 2.) the State never made a plea offer to A. Disqualification denied by the trial court and the court of appeals.

A and B were allegedly drunk and drag racing. They were represented by the same attorney. The State tried A first, apart from B. The State tried to call B as a witness. But B wasn’t on the State’s witness list. A’s attorney objected. The State tried to disqualify A’s attorney by pointing out that he was B’s attorney as well, and would have a conflict-of-interest if B took the stand.

Could B take the stand? Trial counsel discussed this with the trial court.  The State hadn't disclosed B as a witness.  Consequently, the discussion turned on whether the State could get around the lack of disclosure by calling B as an “un-anticipated rebuttal witness.” But to the trial court, it appeared “logical” that you could anticipate calling Racer B in a case against Racer A.  Put another way, it's hard to see how the State seriously claim that its need for B's testimony was unanticipated.

As that discussion was underway, the State announced that it wanted to make a plea offer to B. The trial court directed B, and B alone, to meet with the State. B did so. When B came out of that meeting, he testified (outside of the jury’s presence) that: 1.) the meeting was the first time the State had made any offer to him; 2.) he wouldn’t take the offer just made; and 3.) he would take the Fifth if asked about what he and A had done. There may not be loyalty among thieves, but there is among accused drunk drag racers.

Practically speaking, that ended matters. Without explicitly going back to the effect of the non-disclosure, the trial court denied the State’s motion to disqualify A’s counsel. The State brought a writ of mandamus. The trial court was affirmed, but not because of B’s refusal to testify.

The Tyler court held that the trial court had implicitly ruled the State’s non-disclosure of B meant B couldn’t have taken the stand even if he had wanted to. Hence defense counsel wouldn't be put in the position of having one client at the defense table and another on the stand. Hence no actual conflict, and no abuse of discretion in refusing to disqualify A’s counsel.

Thoughts to ponder: These events may have raised an actual conflict between counsel and B. Although B had retained counsel, B didn’t have the benefit of counsel’s input in considering the offer. And even if B had been able to confer with counsel, what about counsel’s loyalties to A? The Court passes on this question because this is a mandamus in A’s trial, not B’s.

Also, what would have happened if the State had made its offer to B earlier? Or what if B was on the State’s witness list, but B refused to testify? Questions like that are why Rule 1.06 “Conflict of Interest: General Rule” of the Rules of Professional Conduct states at Comment 17 that “Inquiry by the court is generally required when a lawyer represents multiple defendants.”

• Email This
• Print
• Comments
• Trackbacks

In re GM (Published): In a product liability case involving an S-10 pickup fire, the plaintiffs sought GM’s S-10 documents at all points in time, as well as documents about other GM vehicles. The trial court overruled GM’s objections and compelled production. On mandamus, the trial court’s order was overruled.  The Tyler court ruled that the discovery sought was too broad.

There’s a long history concerning truck fires, GM, and discovery. The Texas Supreme Court issued a decision in the 1980’s in a GM C-Series pickup fire case. That decision held that there must be reasonable time limits on the documents sought. In the 1990’s NBC's Dateline “juiced” an exposé  on the C-Series pickup by using fireworks to “dramatize” what they said would have happened without the fireworks. See the video of GM's response here.  This history is worth keeping in mind when dealing with requests that ask for practically every document involving GM and fires.  A request like that covers a lot of documents.

The Texas Supreme Court has said that the requesting party has the burden to show that its requests are tailored to the case at hand. The Tyler court says likewise.

Practice tip: There were 85 document requests involved, and 43 interrogatories. They weren’t addressed one-by-one. Instead the parties presented “general arguments regarding the proper scope of discovery ….”  GM did not waive their objections by doing this. Instead, they may have earned some goodwill by sparing the court the details of each individual request. 

• Email This
• Print
• Comments
• Trackbacks

Edmonds v. Gray & In re Edmonds (Published Memo):  Appointment of a receiver is within the trial court’s judgment enforcement power.  Divorce decree provided that a Lake Tyler East house would be sold for an “mutually agreed” price. Initially, the exes did agree on a listing price, but then the house sat on the market and they couldn’t agree on "how low to go" to get it sold. The court’s appointment of a receiver to sell the house was in the nature of enforcement of the decree as written and was not an impermissible substantive modification of the decree’s terms. Tex. Fam. Code § 9.007(a).

Interlocutory appeal is the appropriate tool to challenge appointment of a receiver.  A challenge to the appointment of a receiver is specifically enumerated in the interlocutory appeal statute. Tex. Civ. Prac. & Rem. Code § 51.014(a)(1). That being said, incidental rulings in an order appointing a receiver are not covered by the statute, leaving mandamus as the only avenue of pre-trial review for those issues.  Such as the $6,000 monetary award to Edmonds.

Continue Reading...

• Email This
• Print
• Comments
• Trackbacks

In re Burrow II: (Unpublished Memo):  Burrow's pro se mandamus petition is denied because the record shows that he has counsel.

Burrow's mandamus petition was before the Tyler court earlier this year: In re Burrow I.  I didn't post about it because it was unremarkable -- his mandamus was dismissed because he didn't present a record of the trial court's proceedings.

The mandamus was dismissed just as swiftly on the second go-round, but the reason for dismissal is much more interesting this time.

• Email This
• Print
• Comments
• Trackbacks

In re Dekard; In re Kennedy; In re Parker (all Unpublished Memos): Three very similar cases disposed of on the same grounds. Criminal defendants want the trial court to set bail, read them their rights, and issue notices of the charges against them.  They bring mandamus actions in the Tyler court.  The Tyler court denies all of them.  The defendants could have, and should have, raised these complaints via habeas corpus petitions in the trial court.

• Email This
• Print
• Comments
• Trackbacks

Rapid Settlements v. SSC Settlements (Published): Arbitration is a bit like an alien abduction isn't it?  Well, I suppose if you're the party that wants arbitration, it's more akin to the Rapture.  Either way, the parties find themselves transported to another realm.  Leaving those left behind wondering what has happened and what to do.

OK, here's what I mean:  Here in our legal world, we've got our own community with its own rules.  Especially rules about who has enough interest in a matter to be a party to a case.  Not every case is just about the two parties to a written agreement.  There are often cases where third parties also have a big stake in the outcome.  Maybe these third parties intervene in a pending suit.  Maybe they sue in their own right.

But what happens when arbitration comes along like an alien spaceship, zaps the signatories up out of the legal world, and leaves the third parties behind?  This case raises that question.  That's why it's a "Case o' the Year" contender.

The details ....

Continue Reading...

• Email This
• Print
• Comments
• Trackbacks (1)

In re Bane Investments (Published):   Mandamus motion denied as untimely.  The trial court disqualified Bane's attorney more than a month before an MSJ hearing.   Bane wanted the Tyler court to reinstate that attorney so that he could represent Bane at the MSJ hearing.  Relief was denied because Bane didn't file the mandamus petition until nine days after the MSJ hearing.

The disqualified attorney was Judge Parsons, who had presided over the case for four years.

• Email This
• Print
• Comments
• Trackbacks

In re Rusk Energy (Published): Trial court allowed a gas well to be drilled, but required a $100,000 bond to compensate the surface owner for damages from unreasonable use.  There certainly had been use of the surface -- at the time of the hearing, the driller had prepared the well site but had not completed the well.  Even so, it was error to require a bond because there was no evidence that the driller made unreasonable use of the surface.

The arguments against mandamus are noteworthy.

The trial court's order was something of a split decision for Rusk Energy, the majority working interest owner.  Yes, they could continue operations, but only if they posted a $100,000 bond.  Having sunk so much time and money into the well, the only sensible thing Rusk Energy could do was post the bond and get on with it.  So that's what they did.

The surface owner contended Rusk Energy's actions waived their right to seek mandamus relief.

First, the surface owner contended that the controversy became moot once Rusk Energy posted the bond.  True enough, there are situations when a party's payment of a judgment destroys their right of appeal.  But this isn't one of them.  The key is that Rusk Energy's payment wasn't free and voluntary.  A free and voluntary payment can rightly be construed as a decision to put an end to the litigation.  But, economically speaking, the trial court's order put a gun to Rusk Energy's head.  Their payment wasn't voluntary.  No one could reasonably believe such payment was free choice to end the matter.

Next, the surface owner contended that Rusk Energy's continued operations constituted acceptance of the judgment.  As before, there are cases saying you can't cherry-pick judgments -- you've got to take the bad with the good.  This is called the "acceptance of benefits" doctrine.  But, again, the acceptance has to be voluntary.  Under these circumstances, Rusk Energy's actions weren't voluntary.

Question: Who has the burden to show economic duress/lack of voluntary choice?  The opinion doesn't spell it out, but it looks like the burden is on the party claiming it.  Rusk Energy put on such evidence in this case, and their evidence was cited extensively by the Tyler court.

As a third reason to avoid the merits of the mandamus, the surface owner objected that Rusk Energy had delayed filing its mandamus for six months.  If there were no good reason for that delay, the mandamus would have gotten tossed.  But there were good reasons.  The trial court ordered the parties to mediation, and was reconsidering its ruling.  The mandamus was filed within a month after the ruling on reconsideration.  Under the facts of this case, that's reasonably timely.

The surface owner failed to show that the use was unreasonable.  There was nothing in the lease that limited the use of the surface or required the payment of damages on a per-acre basis.  So the mineral estate dominates.  The surface owner has to show that the use of the surface is unreasonable.  The surface owner here put on no such evidence.

The Tyler court doesn't rule out bonds in appropriate cases.  What if the surface owner had shown that Rusk Energy's use was unreasonable?  The Tyler court leaves open the possibility that they could have gotten a bond with proper pleadings and proof.

Rusk Energy could not have gotten this mandamus relief before 2004.  Just a few years ago, Rusk Energy would have had to show that the bond was so large that it precluded Rusk Energy's development of the merits of its case or placed it in danger of permanently losing substantial rights.  Neither was the case.  Rusk Energy had the wherewithal to continue the case.  And they could have won it, thereby getting the bond dissolved at the trial level.  So, under that standard, no mandamus would have issued.

But in 2004 the Texas Supreme Court issued In re Prudential, holding that flexibility is the "principle virtue" of mandamus, and that "rigid rules" are at odds with that virtue.  Accordingly, "significant rulings in exceptional cases may be essential to preserve important substantive and procedural rights from impairment or loss, allow the appellate courts to give needed and helpful direction to the courts that would otherwise prove elusive in appeals from final judgments, and spare private parties and the public the time and money utterly wasted enduring eventual reversal of improperly conducted proceedings."  Hence the relief for Rusk Energy in this 2008 case.

• Email This
• Print
• Comments
• Trackbacks

In re Moore and Newsome (Published): It' not often you see a case in the court of appeals before an answer has been filed.  But it happens.

Moore and Newsome did some suing in Anderson County.  The opinion doesn't say who they were suing or why.  In any event, they say they asked the district clerk to issue citation, but she wouldn't. They say they asked the trial judge to rule on some motions, but he wouldn't.   They say they asked the regional presiding judge to get them a new trial judge, but he didn't.

So they bring a mandamus proceeding in Tyler.

The Tyler court says:

1. It has no mandamus jurisdiction over district clerks except to preserve its own jurisdiction (e.g., when the court of appeals needs the clerk's record in a pending appeal).

2. It does have jurisdiction over the trial judge. But Moore and Newsome didn't present the record to the Tyler court, so the Tyler court has no way to look at the motions to see if the trial judge had a reasonable time to rule.

3. It has no mandamus jurisdiction over the regional presiding judge.

All relief requested by Moore and Newsome is denied.

• Email This
• Print
• Comments
• Trackbacks

In re Herbert (Unpublished Memo): Herbert's appeal bond was revoked in a criminal case.  He brought a combined habeas corpus/mandamus motion in the Tyler court.  The habeas motion was dismissed for want of jurisdiction because "courts of appeals do not have original habeas corpus jurisdiction in criminal law matters."  The mandamus was denied because there was an adequate remedy at law -- a regular appeal of the order revoking the bond.

• Email This
• Print
• Comments
• Trackbacks