Republican Court orders Democratic candidate placed on primary ballot

Supreme Court, in unsigned opinion, also suggests that would-be state-rep could be criminally prosecuted, but holds that Harris County Democratic Party Chair did not have authority to deny her certification under the Election Code, because she met the eligibility requirements and could not be disqualified by the party chair for failure to have a campaign treasurer on file with the Texas Ethics Commission.

In Re Torry, No. 08-0057 (Tex. Jan. 25, 2008)(per curiam) (election mandamus against Democratic Party chair)

IN RE LARHONDA TORRY; 1st district (01-08-00031 CV, ___ S.W.3d ___, 01-18-2008)motion for temporary relief dismissed as moot
Pursuant to Texas Rule of Appellate Procedure 52.8(c), without hearing oral argument, the Court conditionally grants the petition for writ of mandamus.

In re LaRhonda Torry, Relator

═══════════════════════════════════
On Petition for Writ of Mandamus
═══════════════════════════════════

PER CURIAM

On January 2, 2008, the deadline by which a candidate must file an application for a place on the March 2008 primary ballot, relator LaRhonda Torry submitted with respondent Gerald Birnberg, Chair of the Harris County Democratic Party, her application and the requisite $750 filing fee to become a candidate for State Representative, District 147, in the Democratic Party Primary. See Tex. Elec. Code §§ 172.023(a), 172.024(a)(5). Birnberg accepted Torry’s application and filing fee, but rejected her application five days later.

Birnberg explained that when Torry submitted her application, she did not have a campaign treasurer appointment on file with the Texas Ethics Commission as the Election Code requires. See id. § 252.005(1)(E). Birnberg further stated that the Election Code forbids a candidate: (1) from making a campaign expenditure or accepting a campaign contribution at a time when a campaign treasurer appointment is not in effect; and (2) from accepting a cash contribution exceeding $100.[1] See id. §§ 253.031(a), 253.033(a).

Birnberg concluded that, as a result of these Election Code violations, Torry could not have lawfully paid her filing fee. Torry has since appointed a campaign treasurer.

Torry filed a mandamus petition with the court of appeals, which that court denied. __S.W. 3d__. Torry now requests that this Court issue a writ of mandamus directing Birnberg to certify Torry’s name for placement on the official ballot of the Harris County Democratic Party for the March 4, 2008, general primary election for State Representative, District 147. Sections 161.009 and 273.061 of the Election Code authorize this Court to issue a writ of mandamus to compel a political party officer to perform a duty imposed by law in connection with an election. TEX. ELEC. CODE §§ 161.009, 273.061.

Birnberg does not contend that Torry has failed to satisfy the qualifications for office of state representative set forth in Article III, Section 7 of the Texas Constitution.[2] Nor does Birnberg contend that Torry’s application failed to comply with the applicable requirements of the Election Code. See TEX. ELEC. CODE §§ 141.031, 172.021. Birnberg further acknowledges that Torry paid the $750 filing fee before 6:00 p.m. on January 2, 2008, the deadline for applying for a place on the ballot. See id. § 172.023(a). We cannot locate, and Birnberg does not identify, any Election Code provision that authorizes a party chair to refuse to certify a candidate’s name for placement on the ballot on the basis of the candidate’s failure to designate a campaign treasurer with the Texas Ethics Commission. Nor does the Election Code authorize a party chair to insert additional certification requirements beyond those prescribed in the Election Code.

Birnberg is correct that the Election Code requires a candidate for state representative to appoint a campaign treasurer and report that appointment to the Texas Ethics Commission. Id. §§ 252.001, 252.005(1)(A). Neither statute prescribes a penalty for a candidate’s noncompliance with those provisions. Birnberg is also correct in asserting that, pursuant to section 253.031(a), a candidate may not “knowingly accept a campaign contribution or make or authorize a campaign expenditure at a time when a campaign treasurer appointment for the candidate is not in effect” and that a violation of that provision is a Class A misdemeanor. Id. § 253.031(a), (f).

Additionally, a candidate may not knowingly accept from a contributor in a reporting period a cash contribution that in the aggregate exceeds $100. Id. § 253.033(a). Assuming, without deciding, that Torry violated sections 253.031(a) and 253.033(a) of the Election Code in paying the filing fee, the Penal Code would provide for any appropriate penalty. The Election Code does not authorize Birnberg, as a county party chair, to prescribe his own penalty for a candidate’s failure to comply with any of these provisions.

Accordingly, without hearing oral argument, Tex. R. App. P. 52.8(c), we conditionally grant the writ of mandamus and direct Birnberg to certify Torry as a candidate for State Representative, District 147, and take all necessary steps to include her name on the Democratic Party primary ballot. We are confident Birnberg will promptly comply, and our writ will issue only if he does not.

OPINION DELIVERED: January 25, 2008

[1] Birnberg claims that Torry accepted the $750 in cash from a woman who accompanied Torry to the headquarters to submit her application and filing fee and that this constituted a campaign contribution.

[2] Article III, Section 7 of the Texas Constitution states: “No person shall be a Representative, unless he be a citizen of the United States, and, at the time of his election, a qualified voter of this State, and shall have been a resident of this State two years next preceding election, the last year thereof a resident of the district for which he shall be chosen, and shall have attained the age of twenty-one years.” Tex. Const. art. III, § 7.

Statutory Construction: Justice Willett writes separately to articulate his view of the role of legislative history in construing statutes

Citing Justice Scalia, Willett says Court should not delve into legislative history in statutory construction appeals when the text of the law as enacted by the Legislature is clear.

Justice Willett, concurring in the judgment [in AIC Management v. Crews, No. 05-0270 (Tex. Jan 25, 2008)(Opinion by Harriet O’Neill)] :

My only quibble with the Court's decision is that it peeks unnecessarily into the legislative history surrounding the 1985 enactment and 1989 amendment of section 25.1032. I agree with the Court that section 25.1032 constitutes "the Legislature's specific jurisdictional grant to county civil courts at law in Harris County over eminent-domain and title issues."[1]

But our analysis on jurisdiction should end with that declarative sentence. The statutory text is unequivocal, which makes it dispositive, which makes the tag-along paragraph examining the legislative history unnecessary.

True, in today's case, the cited history happens to be consonant with section 25.1032's unambiguous text, but it is not difficult to imagine cases where a shrewd snippet from a committee hearing or floor debate could contradict a result that the face of the statute plainly requires. Citing such background materials even to confirm the clear meaning of dispositive text suggests that the text alone is in fact not dispositive, but rather vulnerable to challenge by a stray floor-debate comment from an individual legislator or a witness testifying at a post-midnight committee hearing or a bill analysis drafted by a legislative staffer (or, just as likely, ghost-drafted by a lobbyist). The statute itself is what constitutes the law; it alone represents the Legislature's singular will, and it is perilous to equate an isolated remark or opinion with an authoritative, watertight index of the collective wishes of 181 individual legislators, who may have 181 different motives and reasons for voting the way they do.[2]

This Court recognizes that legislative intent is best embodied in legislative language. We recently cautioned that "over-reliance on secondary materials should be avoided, particularly where a statute's language is clear. If the text is unambiguous, we must take the Legislature at its word and not rummage around in legislative minutiae."[3] Faced with clear statutory language, "the judge's inquiry is at an end."[4] It may be a widespread practice to mine the minutiae of legislative records to discern what lawmakers had in mind, but as we have held, relying on these materials is verboten where the statutory text is, as here, absolutely clear.[5]

Accordingly, because the jurisdictional question can be decided without recourse to legislative history, we should decide the jurisdictional question without recourse to legislative history.

____________________________________
Don R. Willett
Justice

Opinion delivered: January 25, 2008

[1] __ S.W.3d __.
[2] Frank H. Easterbrook, Text, History, and Structure in Statutory Interpretation, 17 Harv. J.L. & Pub. Pol’y 61, 68 (1994) (“Intent is elusive for a natural person, fictive for a collective body.”).
[3] Alex Sheshunoff Mgmt. Servs., L.P. v. Johnson, 209 S.W.3d 644, 652 n.4 (Tex. 2006).
[4] Id. at 652.
[5] Id. at 651–52. Justice Scalia, the foremost critic of supplementing clear statutory text with legislative history, has stated his position plainly:
As today's opinion shows, the Court's disposition is required by the text of the statute. . . . That being so, it is not only (as I think) improper but also quite unnecessary to seek repeated support in the words of a Senate Committee Report—which, as far as we know, not even the full committee, much less the full Senate, much much less the House, and much much much less the President who signed the bill, agreed with. Since, moreover, I have not read the entire so-called legislative history, and have no need or desire to do so, so far as I know the statements of the Senate Report may be contradicted elsewhere.
Accordingly, because the statute—the only sure expression of the will of Congress—says what the Court says it says, I join in the judgment.
Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 267 (2004) (Scalia, J., concurring in the judgment).

CASE INFO:

AIC Management v. Crews, No. 05-0270 (Tex. Jan 25, 2008)(O’Neill) (condemnation, sufficiency of legal description, UDJA, jurisdiction of Harris County Civil Courts at Law)
AIC MANAGEMENT v. RHONDA S. CREWS, CURTIS CALDWELL CREWS, ANNETTE CREWS, DENISE CLAUDEN CREWS, AND CLAUDE CREWS, JR., THE HEIRS OF EMMA CREWS, VALDA CREWS, AND EVA FAY GROSS, AND ALDINE INDEPENDENT SCHOOL DISTRICT; from Harris County; 1st district(01-03 01178-CV, ___ S.W.3d ___, 02-03-2005) (Opinion of the First Court of Appeals - by Higley)
The Court reverses the court of appeals' judgment and remands the case to the trial court.
Justice O'Neill delivered the opinion of the Court.
Justice Willett filed a concurring opinion.

Jury Argument: Nazi Comparison Not Kosher

Texas Supreme Court grants new trial on grounds of incurable jury argument in wrongful death suit against nursing home in which defendant had stipulated to liability and only the issue of damages remained for trial. Plaintiff's lawyer had made comparison with dehumanization of the elderly and infirm by the Nazis in arguing for higher jury award. Jury obliged with large punitive damages. Finding the argument utterly reprehensible and prejudicial, the high court reverses the judgment on jury verdict although Defendant had not objected, and trial court had not used its authority to manage trial and maintain decorum - or its contempt powers - to sanction or curb courtroom excess in trial advocacy.

Living Centers of Texas, Inc. v. Penalver, No. 06-0929 (Tex. Jan. 25, 2008)(per curiam)

PER CURIAM

Living Centers of Texas, Inc., defendant in a wrongful death suit, stipulated liability. During final argument of the trial on damages, plaintiff’s counsel compared Living Centers’ lawyer’s attempts to minimize damages to a World War II German program in which elderly and infirm persons were used for medical experimentation and killed. Concluding that the jury argument was improper and incurable, we reverse and remand for a new trial.

Belia Peñalver moved into a nursing home in 1997. In September 2000, a nursing home employee dropped Belia, who was then 90 years old, while transferring her from a wheelchair to a bed. She died the next day from injuries suffered in the incident. Belia’s sons sued Living Centers of Texas, Inc., its administrator, and its director of nursing (collectively, “Living Centers”) seeking wrongful death and survivor damages.

A first jury trial resulted in judgment in favor of the Peñalvers for $356,000 actual and $362,000 punitive damages, reduced from $500,000 when the trial court applied the statutory cap on punitive damages. The court of appeals reversed and remanded for a new trial because of improperly admitted evidence of previous falls at the nursing home. Before the second trial, Living Centers stipulated that its negligence proximately caused Belia’s injuries and death, so the only issue at trial was the amount of damages.

During closing argument at the second trial, the Peñalvers’ counsel referred to Germany’s World War II T-4 Project and defense counsel’s trial conduct:

In World War II the Germans had a project called T-Four. You probably read about it in history books.

But what they did is they took all the people who they thought were inferior in society, primarily older people, impaired people, and they used them for experiments. They killed them. Over 400,000. That culture 60 years ago didn’t consider the impaired and elderly valuable.

Our culture has never looked at that. We went to war to stop that, the biggest war in the history of the world to stop those atrocities that were going on. And we’re not at the point where we’re tolerant today, as the defense would like you to be, of this wrongful death.

. . . .

But [the defense lawyers’] job here is to convince you that the damages are insignificant to minimize the damages. How have they done that? At the very beginning in opening statement [they] said they only have two defenses, if you want to call it defense. She is old and she is impaired.

. . . .

So it really goes back to that, the initial issue, where are we as a society? Have we regressed to 1944, 1945 Germany? Have we regressed or gone ahead so far now, 60 years later now, we have a different attitude, that a wrongful death of an elderly or impaired person is not every bit as significant and has every bit as significant damages as the wrongful death of anyone else?

Living Center’s counsel did not object to the argument, but attempted to counter it by arguing that “there are no Nazis in this courtroom” and “I’ve never been accused of being a Nazi before.”
The jury awarded almost three times the actual damages awarded in the first trial. The second jury awarded actual damages of $510,000 to Belia’s estate and $300,000 to each of her two sons—a total of $1,110,000. Living Centers filed a motion for new trial based, in part, on allegations that the Peñalvers’ jury argument as to the T-4 Project was improper, incurable, and harmful. The trial court denied the motion for new trial.

Living Centers appealed. The court of appeals affirmed, with one justice dissenting. 217 S.W.3d 44. In its petition for review, Living Centers continues to complain of the final jury argument which criticized Living Centers’ counsel and referenced Germany’s World War II T-4 Project.
Error as to improper jury argument must ordinarily be preserved by a timely objection which is overruled. Tex. Employers’ Ins. Ass’n v. Haywood, 266 S.W.2d 856, 858 (Tex. 1954). The complaining party must not have invited or provoked the improper argument. Standard Fire Ins. Co. v. Reese, 584 S.W.2d 835, 839 (1979). Typically, retraction of the argument or instruction from the court can cure any probable harm, but in rare instances the probable harm or prejudice cannot be cured. In such instances the argument is incurable and complaint about the argument may be made even though objection was not timely made. See Tex. R. Civ. P. 324(b)(5); Haywood, 266 S.W.2d at 858. To prevail on a claim that improper argument was incurable, the complaining party generally must show that the argument by its nature, degree, and extent constituted such error that an instruction from the court or retraction of the argument could not remove its effects. See Haywood, 266 S.W.2d at 858. The test is the amount of harm from the argument:

whether the argument, considered in its proper setting, was reasonably calculated to cause such prejudice to the opposing litigant that a withdrawal by counsel or an instruction by the court, or both, could not eliminate the probability that it resulted in an improper verdict. Id. But jury argument that strikes at the appearance of and the actual impartiality, equality, and fairness of justice rendered by courts is incurably harmful not only because of its harm to the litigants involved, but also because of its capacity to damage the judicial system. Such argument is not subject to the general harmless error analysis.

In Reese, this Court discussed different types of jury argument that constitute incurable error. For example, appeals to racial prejudice adversely affect the fairness and equality of justice rendered by courts because they improperly induce consideration of a party’s race to be used as a factor in the jury’s decision. See Reese, 584 S.W.2d at 840 (citing Haywood, 266 S.W.2d at 858); see also Moss v. Sanger, 12 S.W. 619, 620 (Tex. 1889). Unsupported, extreme, and personal attacks on opposing parties and witnesses can similarly compromise the basic premise that a trial provides impartial, equal justice. See Reese, 584 S.W.2d at 840 (citing Howsley & Jacobs v. Kendall, 376 S.W.2d 562 (Tex. 1964) and Sw. Greyhound Lines, Inc. v. Dickson, 236 S.W.2d 115 (Tex. 1951)). Further, accusing the opposing party of manipulating a witness, without evidence of witness tampering, can be incurable, harmful argument. See Howsley & Jacobs, 376 S.W.2d at 565-66.

The serious effects of arguments not based on evidence or invited by opposing counsel, such as the one under consideration here, are recognized in our Rules of Civil Procedure. Rule 269 provides that during final arguments, “[m]ere personal criticism by counsel upon each other shall be avoided, and when indulged in shall be promptly corrected as a contempt of court.” Tex. R. Civ. P. 269(e). Trial courts are not required to wait for objections before correcting improper argument, but should guard against such conduct and correct it sua sponte. Tex. R. Civ. P. 269(g).

Incurable argument is, however, rare. Not all personally critical comments concerning opposing counsel are incurable. But arguments that strike at the courts’ impartiality, equality, and fairness inflict damage beyond the parties and the individual case under consideration if not corrected. Such arguments damage the judicial system itself by impairing the confidence which our citizens have in the system, and courts countenance very little tolerance of such arguments. See Reese, 584 S.W.2d at 840 (“The injection of new and inflammatory matters into the case through argument has in exceptional instances been regarded as incurable by an instruction. . . . [A]n affront to the court and the equality which it must portray will be dealt with harshly.”).
The argument which Living Centers complains of struck at Living Centers and its trial counsel by comparing trial counsel to perpetrators of the T-4 Project atrocities. The T-4 Project was brought up only once during trial when, upon inquiry by the Peñalvers’ counsel, a witness testified that he was not familiar with the program. There was no evidence that Living Centers either intended to injure or kill Belia or that Living Centers performed medical experiments on her. The extreme final argument cannot be said to have been invited by the actions of Living Centers’ counsel in pointing out what the evidence clearly showed: Belia was elderly and had certain impairments that accompanied the aging process. The Peñalvers’ improper comments were not inadvertent, and the jury argument was designed to incite passions of the jury and turn the jurors against defense counsel for doing what lawyers are ethically bound to do: advocate clients’ interests within the bounds of law. Counsel for Living Centers was entitled to urge a smaller damages amount than the plaintiffs sought without being painted as modern-day equivalents of T-4 Project operators who experimented on and purposefully killed humans.
The argument struck at the integrity of the courts by utilizing an argument that was improper, unsupported, and uninvited. Failure to deal harshly with this type of argument can only lead to its emulation and the entire judicial system will suffer as a result.

Our analysis and conclusion is not altered because it was Living Centers’ counsel who first used the term “Nazi.” The right to complain of improper, incurable jury argument is not lost by counsel’s attempting to respond to and reduce the effect of such argument. See Tex. R. Civ. P. 269(e); Panhandle & S.F. Ry. Co. v. Huckabee, 216 S.W. 666, 668 (Tex. 1919).

We agree with the dissenting justice in the court of appeals: the argument complained of struck at the heart of the jury trial system, was designed to turn the jury against opposing counsel and his clients, and was incurable. The judgment of the court of appeals is reversed, and the case is remanded for a new trial.

OPINION DELIVERED: January 25, 2008

=========

LIVING CENTERS OF TEXAS, INC., CYNDI BROWN, LNFA, AND KIMBERLY BORDOVSKY, DON v. AUGUSTINE PEÑALVER, INDIVIDUALLY AND AS INDEPENDENT EXECUTOR OF THE ESTATE OF MARIA BELIA PEÑALVER, DECEASED, AND RAMON PEÑALVER; from Bexar County; 4th district (04-05-00565-CV, 217 S.W.3d 44, 09-13-2006) Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court reverses the court of appeals' judgment and remands the case to the trial court.

2008-01-25 Texas Supreme Court Hands Down Eight Opinions

SIGNED SUPREME COURT OPINIONS RELEASED JAN. 25, 2008:

City of Rockwall, Texas vs. Hughes, No. 05 0126 (Tex. Jan. 25, 2008) (Phil Johnson)
Arkoma Basin Exploration Co. v. FMF Associates, 1990-A. Ltd., No. 03-1066 (Tex. Jan. 25, 2008) (Scott Brister)
AIC Management vs. Crews, No. 05-0270 (Tex. Jan. 25, 2008)(Harriet O’Neill)
In re BP Products North America, Inc., No. 07-0119 (Tex. Jan. 25, 2008)(Gaultney, sitting by assignment)

PER CURIAM OPINIONS ISSUED TODAY:

Living Centers of Texas, Inc. vs. Penalver, No. 06-0929 (Tex. Jan. 25, 2008) (per curiam)
Nueces County vs. San Patricio County, No. 07 0166 (Tex. Jan. 25, 2008) (per curiam)
In Re Torry, No. 08-0057 (Tex. Jan. 25, 2008) (per curiam)
Warwick Towers Council of Co-Owners vs. Park Warwick LP, No. 07-0384 (Tex. Jan 25, 2008) (per curiam)

Also see ---> Texas Supreme Court January 25, 2008 Weekly Orders

CASE DETAILS AND LINKS TO OPINIONS

Arkoma Basin Exploration Co., No. 03-1066 (Tex. Jan. 25, 2008) (Brister) (jury award of fraud damages reversed)
ARKOMA BASIN EXPLORATION COMPANY, INC., ET AL. v. FMF ASSOCIATES 1990-A, LTD., ET AL.; from Rockwall County; 5th district (05-02-00669 CV, 118 S.W.3d 445, 08-21-2003)motion to release security dismissed as mootThe Court affirms in part and reverses in part the court of appeals' judgment and renders judgment.Justice Brister delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Hecht, Justice Wainwright, Justice Green, Justice Medina, Justice Johnson, and Justice Willett joined.
Justice O'Neill filed a concurring and dissenting opinion.

City of Rockwall, Texas v. Hughes, No. 05-0126 (Tex. Jan 25, 2008) (Johnson) (annexation, arbitration)
THE CITY OF ROCKWALL, TEXAS v. VESTER T. HUGHES, AS SOLE INDEPENDENT EXECUTOR OF THE ESTATE OF W. W. CARUTH, DECEASED; from Rockwall County; 5th district (05-04-01562-CV, 153 S.W.3d 709, 01-20-2005)
The Court reverses the court of appeals' judgment and renders judgment.Justice Johnson delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Wainwright, Justice Medina, and Justice Green joined.
Justice Willett filed a dissenting opinion, in which Justice Hecht, Justice O'Neill, and Justice Brister joined.

AIC Management v. Crews, No. 05-0270 (Tex. Jan 25, 2008)(O’Neill) (condemnation, jurisdiction of Harris County Civil Courts at Law)
AIC MANAGEMENT v. RHONDA S. CREWS, CURTIS CALDWELL CREWS, ANNETTE CREWS, DENISE CLAUDEN CREWS, AND CLAUDE CREWS, JR., THE HEIRS OF EMMA CREWS, VALDA CREWS, AND EVA FAY GROSS, AND ALDINE INDEPENDENT SCHOOL DISTRICT; from Harris County; 1st district (01-03 01178-CV, ___ S.W.3d ___, 02-03-2005) (Opinion of the Court of Appeals - by Higley)
The Court reverses the court of appeals' judgment and remands the case to the trial court. Justice O'Neill delivered the opinion of the Court.
Justice Willett filed a concurring opinion.

Living Centers of Texas, Inc. v. Penalver, No. 06-0929 (Tex. Jan. 25, 2008)(per curiam) (wrongful death, improper jury argument)
LIVING CENTERS OF TEXAS, INC., CYNDI BROWN, LNFA, AND KIMBERLY BORDOVSKY, DON v. AUGUSTINE PEÑALVER, INDIVIDUALLY AND AS INDEPENDENT EXECUTOR OF THE ESTATE OF MARIA BELIA PEÑALVER, DECEASED, AND RAMON PEÑALVER; from Bexar County; 4th district (04-05-00565-CV, 217 S.W.3d 44, 09-13-2006) Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court reverses the court of appeals' judgment and remands the case to the trial court. Per Curiam Opinion

In re BP Products North America, Inc., No. 07-0119 (Tex. Jan. 25, 2008)(Gaultney, sitting by assignment)(apex deposition, discovery mandamus granted)IN RE BP PRODUCTS NORTH AMERICA, INC.; from Galveston County; 1st district (01-06-00943 CV, ___ S.W.3d ___, 02-09-2007) Opinion below: In re BP Products North America Inc., (Tex.App.- Houston [1st Dist.] Feb. 9, 2007)(per curiam) motion to dismiss mandamus as moot, deniedstay order issued February 22, 2007, liftedThe Court conditionally grants the petition for writ of mandamus. [Trial court judge: Susan Criss]Justice Gaultney delivered the opinion of the Court.(Justice Gaultney sitting by commission pursuant to Section 22.005 of the Texas Government Code)(Justice O'Neill not sitting)

Nueces County v. San Patricio County, No. 07-0166 (Tex. Jan. 25, 2008)(per curiam) (governmental immunity)NUECES COUNTY v. SAN PATRICIO COUNTY; from Refugio County; 13th district (13-05-00022 CV, 214 S.W.3d 536, 12-07-2006) Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court vacates the court of appeals' judgment and renders judgment. Per Curiam Opinion

Warwick Towers Council of Co-Owners v. Park Warwick LP, No. 07-0384 (Tex. Jan 25, 2008)(per curiam)(insurance law, sufficiency, effectiveness of notice of appeal in insured's name)WARWICK TOWERS COUNCIL OF CO-OWNERS, BY AND THROUGH ST. PAUL FIRE & MARINE INSURANCE COMPANY v. PARK WARWICK, L.P., PARK WARWICK INVESTMENTS, L.L.C., AND PARK HOTEL INVESTMENTS, L.L.C.; from Harris County; 14th district (14-05-00254-CV, 218 S.W.3d 149,01-11-2007) [Justice Seymore dissented in the court of appeals] Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court reverses the court of appeals' judgment and remands the case to that court. Per Curiam Opinion

In Re Torry, No. 08-0057 (Tex. Jan. 25, 2008)(per curiam) (election mandamus against Democratic Party chair)
IN RE LARHONDA TORRY; 1st district (01-08-00031 CV, ___ S.W.3d ___, 01-18-2008) motion for temporary relief dismissed as moot Pursuant to Texas Rule of Appellate Procedure 52.8(c), without hearing oral argument, the Court conditionally grants the petition for writ of mandamus. Per Curiam Opinion

Chief Jefferson's Prayer for Fire-Damaged Medina

Playing with fire ... and taking a chance on getting burnt?

Texas Supreme Court Chief Wallace Jefferson has issued a statement assuring fellow justice David Medina and his wife, who lost their Houston area home to suspected arson (not to mention foreclosure), of the Court's sympathy and suggesting he will seek devine intervention to dispel the clouds. ¡Dios mío! With devout and loyal fellow Republicans like that - not to mention prayer companions - who needs a friendly DA to undo the grand jury's work?

Text follows:

Texas Supreme Court

January 17, 2008

STATEMENT FROM CHIEF JUSTICE WALLACE B. JEFFERSON
ADDRESSING REPORTED INDICTMENT OF JUSTICE MEDINA

The Court is dismayed by news that Justice Medina may have been indicted. Obviously the Court cannot comment on pending litigation more than to express our confidence that the justice system will sort this out. As for Justice Medina and his wife, Francisca, and the entire Medina family, they remain in our prayers.

Comment:

Meanwhile, a prominent appellate advocate and Texas Supreme Court blogger has expressed more secular sympathy for the "undeniably tragic situation" afflicting the Medina family. Unless there is just smoke and no fire, the tragedy - if any - would appear to be self-inflicted.

2008-01-18 Texas Supreme Court Orders

No opinions issued with this Friday's instalment of Texas Supreme Court orders. The biggest supreme court news story of the day is the indictment of Justice David Medina and wife in connection with last year's fire that burned down their home (or burned out at least a good junk of it). The indictment was opposed by soon-to-be lame-duck Harris County DA Rosenthal, who is in hot water himself over ardent professions and fires of a different sort -unconnected to any residential arson.

Orders Pronounced by the Supreme Court of Texas on January 18, 2008
(information obtained from the court's web site)

ORDERS ON PETITIONS FOR REVIEW

THE FOLLOWING PETITIONS FOR REVIEW ARE DENIED:

No. 07‑0854
EXCEL AUTO AND TRUCK LEASING, LLP v. ALIEF INDEPENDENT SCHOOL DISTRICT, ET AL.; from Harris County; 1st district (01‑04‑01185‑CV, ___ SW3d ___, 08‑31‑07)
No. 07‑0876
PASCUAL OLIBAS v. THE HONORABLE SHERIFF ARNULFO "ANDY" GOMEZ, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS THE SHERIFF OF REEVES COUNTY, TEXAS; from Reeves County; 8th district (08‑06‑00010‑CV, ___ SW3d ___, 08‑23‑07)
No. 07‑0937
GEORGE HEIGEL AND PATTI CALLIS v. TANYA MCCOMAS; from Ector County; 11th district (11‑06‑00134‑CV, ___ SW3d ___, 09‑27‑07)
No. 07‑0999
KENNETH D. SMARTT, JR., ELIZABETH JIMENEZ, XOTICAS-LAREDO, L.P.; XOTICAS-LAREDO, INC., K. SMARTT INVESTMENTS, INC., D/B/A XOTICAS v. CITY OF LAREDO, TEXAS; from Webb County; 7th district (07‑06‑00291‑CV, ___ SW3d ___, 10‑23‑07)
No. 07‑1006
CANAL INSURANCE COMPANY v. MARK HOPKINS D/B/A HOPKINS TOWING & RECOVERY; from Nacogdoches County; 12th district (12‑06‑00411‑CV, ___ SW3d ___, 10‑24‑07)

THE FOLLOWING PETITIONS FOR REVIEW ARE DISMISSED FOR WANT OF JURISDICTION:

No. 07‑0761
DIAMOND J. PANTAZE v. ANITA LONDON YUDIN; from Dallas County; 5th district (05‑06‑00181‑CV, 229 SW3d 548, 07‑17‑07)petitioner's motion to extend time to file petition for review deniedpetitioner's motion to amend petition for review dismissed as moot
No. 07‑1012
JOHN KOO-HYUN KIM v. AUSTIN COMMUNITY COLLEGE; STEPHEN B. KINSLOW, AS PRESIDENT OF AUSTIN COMMUNITY COLLEGE; GREG ABBOTT, ATTORNEY GENERAL OF TEXAS; REPRESENTATIVE JAIME VALDEZ; AND MYRA MCDANIEL, AS ATTORNEY FOR AUSTIN COMMUNITY COLLEGE; from Travis County; 3rd district (03‑07‑00320‑CV, ___ SW3d ___, 07‑06‑07)
ORDERS ON MOTIONS FOR REHEARING
THE MOTION FOR REHEARING OF THE FOLLOWING DIRECT APPEAL IS DENIED:
07‑1027
No. B. JOE THOMSON v. COMMISSION FOR LAWYER DISCIPLINE; from Harris County; 14th district (14‑04‑01155‑CV, ___ SW3d ___, 08‑10‑06)

THE MOTIONS FOR REHEARING OF THE FOLLOWING PETITIONS FOR REVIEW ARE DENIED:

07‑0452
SHEILA KAY BARNES v. RONALD DUANE BARNES; from Taylor County; 11th district (11‑04‑00148‑CV, ___ SW3d ___, 04‑26‑07)
07‑0803
ARMON ALAN GOSS AND TERESA ANN GOSS, ET AL. v. KELLOGG BROWN & ROOT, INC., INDIVIDUALLY AND AS SUCCESSOR IN INTEREST TO THE M.W. KELLOGG COMPANY; AND HALLIBURTON COMPANY, INDIVIDUALLY AND AS SUCCESSOR IN INTEREST TO THE M.W. KELLOGG COMPANY; from Harris County; 14th district (14‑05‑00050‑CV, 232 SW3d 816, 08‑16‑07)

THE FOLLOWING PETITIONS FOR WRIT OF MANDAMUS ARE DENIED:

08‑0006
IN RE IGLOO PRODUCTS CORPORATION AND JOSE RODRIGUEZ; from Waller County; 14th district (14‑07‑00185‑CV, ___ SW3d ___, 11‑01‑07)relator's motion for emergency relief, as supplemented, denied
08‑0036
IN RE KEITH RUSSELL JUDD

THE FOLLOWING PETITIONS FOR WRIT OF MANDAMUS ARE DISMISSED:

07‑0627
IN RE DAVID LORENZA JOYNER; from Wichita County; 2nd district (02‑07‑00199‑CV)

See Tex. R. App. P. 5.

07‑0845
IN RE CHRISTUS SPOHN HOSPITAL KLEBERG, CHRISTUS SPOHN HEALTH SYSTEM CORPORATION D/B/A CHRISTUS SPOHN HOSPITAL KLEBERG; from Kleberg County; 13th district (13‑07‑00405‑CV, ___ SW3d ___, 09‑26‑07)relator's unopposed motion to dismiss mandamus proceeding grantedmotion for stay dismissed

2008-01-11 Texas Supreme Court Opinions

January 11, 2008 Texas Supreme Court Opinions, Per Curiams, and Dissents

Paj, Inc. v. The Hanover Ins. Co., No. 05-0849 (Tex. Jan. 11, 2008)(Opinion by Justice O'Neill)PAJ, INC. D/B/A PRIME ART & JEWEL v. THE HANOVER INSURANCE COMPANY; from Dallas County; 5th district (05-04-01047-CV, 170 S.W.3d 258, 08/26/05). The Court reverses the court of appeals' judgment, renders judgment in part, and remands the case to the trial court in part.Justice O'Neill delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Brister, Justice Medina, and Justice Green joined.
Justice Willett delivered a dissenting opinion, in which Justice Hecht, Justice Wainwright, and Justice Johnson joined.

Houser v. McElveen, No. 06-0504 (Tex. Jan. 11, 2008)(per curiam)
BRUCE WAYNE HOUSER v. KENNETH W. MCELVEEN, ET AL.; from Jackson County; 13th district (13-05-00426-CV, ___ S.W.3d ___, 02/09/06) Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court reverses the court of appeals' judgment and remands the case to that court.Per Curiam Opinion

OPINIONS ON ORDERS DISPOSING OF MOTIONS FOR REHEARING -
THE MOTIONS FOR REHEARING OF THE FOLLOWING PETITIONS FOR REVIEW ARE DENIED:

AIG Aviation v. Holt Helicopters, Inc. No. 06-0484 (Tex. Jan. 11, 2008)(Dissenting opinion on reh'g by Justice Willett)
AIG AVIATION (TEXAS), INC. AND NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PENNSYLVANIA v. HOLT HELICOPTERS, INC.; from Uvalde County; 4th district (04-05-00291-CV, 198 S.W.3d 276, 04/26/06) Dissenting opinion by Justice Willett

Levine v. Shackelford, No. 06-0553 (Tex. Jan. 11, 2008)(per curiam)
SOL LEVINE, DOROTHEA LEVINE, AND MARDAN ENERGY CORPORATION v. SHACKELFORD, MELTON & MCKINLEY, L.L.P.; BRAGG, CHUMLEA, MCQUALITY; AND JOSEPH G. CHUMLEA, P.C.; from Dallas County; 5th district (05-05-00374-CV, ___ S.W.3d ___, 04/07/06) Per Curiam Opinion

Paj, Inc. v. The Hanover Ins. Co., No. 05-0849 (Tex. Jan. 11, 2008)(Opinion by Justice O'Neill)PAJ, INC. D/B/A PRIME ART & JEWEL v. THE HANOVER INSURANCE COMPANY; from Dallas County; 5th district (05-04-01047-CV, 170 S.W.3d 258, 08/26/05)
The Court reverses the court of appeals' judgment, renders judgment in part, and remands the case to the trial court in part. Justice O'Neill delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Brister, Justice Medina, and Justice Green joined.
Justice Willett delivered a dissenting opinion, in which Justice Hecht, Justice Wainwright, and Justice Johnson joined.

Reeling from Bias Allegations, Texas Supreme Court cuts underdogs some slack; Says incarcerated plaintiff should not be penalized

It is by no means true that the Texas Supreme Court picks cases only for the purpose of undoing consumer class actions, reversing large jury awards in personal injury cases, and changing controlling precedent to vindicate the financial interests of corporate defendents and insurance companies, and to relieve governmental entities and their wayward agents of responsibility by cloaking them with the mantle of sovereign immunity. Time and again, the Court also issues procedural mercy rulings, such as extending the benefits of the mailbox rule to an inmate with limited opportunity to get anywhere near a U.S. mailbox.

To the unabated joy of pro se, IFP, and otherwise underprivileged customers of the state's courts, here is the first such plaintiff-friendly mercy ruling for the new year:

Houser v. McElveen, No. 06-0504 (Tex. Jan. 11, 2008)(per curiam)
BRUCE WAYNE HOUSER v. KENNETH W. MCELVEEN, ET AL.; from Jackson County; 13th district (13-05-00426-CV, ___ S.W.3d ___, 02/09/06)

Petitioner Bruce Wayne Houser, a pro se inmate, sued for mandamus compelling respondent Kenneth McElveen, the county clerk of Jackson County, to probate Houser’s father’s will. The trial court dismissed the petition, and Houser asserts, without challenge, that he deposited his notice of appeal in the prison mail 35 days later. The court of appeals received it on the 46th day after the judgment was signed and dismissed the appeal as not having been timely perfected. ___ S.W.3d ___ (Tex. App.–Corpus Christi 2006) (per curiam).

The notice of appeal was required to be filed within 30 days of the judgment, Tex. R. App. P. 26.1, but the court of appeals should have extended that time if, within the next 15 days, Houser filed his notice of appeal and a motion for extension with a reasonable explanation, Tex. R. App. P. 10.5(b), 25.1(a), 26.3. The notice of appeal was deemed filed on the day he mailed it, since it was received one day after the 15-day deadline, Tex. R. App. P. 9.2(b), Ramos v. Richardson, 228 S.W.3d 671, 673 (Tex. 2007) (per curiam), and a motion for extension was thereby implied, Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997). The question, then, is whether there is “any plausible statement of circumstances indicating that failure to file within the [specified] period was not deliberate or intentional, but was the result of inadvertence, mistake, or mischance.” Meshwert v. Meshwert, 549 S.W.2d 383, 384 (Tex. 1977).

In his notice of appeal, and in his petition here without challenge, Houser states that he mailed a motion for new trial nine days after the judgment, and a copy of a transmittal letter bearing that date is attached. There is no motion for new trial in the trial court’s record, but Houser could reasonably have believed that the clerk would receive it within three weeks of when he says he mailed it.

An inmate who does everything in his power to satisfy timeliness requirements may not be penalized for the error or tardiness of prison officials. See Williams v. T.D.C.J.-I.D., 142 S.W.3d 308, 309-310 (Tex. 2004) (per curiam). If a motion for new trial had been received within 30 days of the judgment, Houser’s notice of appeal would have been timely filed. Tex. R. App. P. 26.1(a)(1). This plausible statement of circumstances indicates that Houser’s failure to timely file his notice of appeal was not intentional but inadvertent. See Hone v. Hanafin, 104 S.W.3d 884, 886 (Tex. 2003) (per curiam).

Houser was entitled to an extension of time in which to file his notice of appeal, and thus the court of appeals should not have dismissed the appeal. Accordingly, we grant the petition for review, and without hearing oral argument, we reverse the court of appeals’ judgment and remand the case for further proceedings. Tex. R. App. P. 59.1.

Opinion delivered: January 11, 2008

Willett, lone dissenter, extolls virtues of uniformity and urges colleagues to join national "mainstream" in construing aviation insurance policy

On motion for rehearing, Justice Don Willett argues that the Court should not apply one enforcement rule to aviation contracts and a different enforcement rule to all other contracts. Interestingly, in the context of government contracts, the Court does not enforce contracts at all, but instead requires trial courts to shut the courthouse door in the name of sovereign immunity unless forced by the Legislature to keep it open under certain circumstances or for certain categories of defendants.

AIG Aviation v. Holt Helicopters, Inc. No. 06-0484 (Tex. Jan. 11, 2008)(Dissenting opinion on reh'g by Justice Willett)
AIG AVIATION (TEXAS), INC. AND NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PENNSYLVANIA v. HOLT HELICOPTERS, INC.; from Uvalde County; 4th district (04-05-00291-CV, 198 S.W.3d 276, 04/26/06)

Dissenting opinion by Justice Willett on Motion for Rehearing of Petition

Justice Willett, dissenting from the denial of the motion for rehearing of the petition.

This Court has held—recently and repeatedly—that insurance contracts should be enforced according to their express terms:

$ Healthcare insurance contracts—we enforce them as written.[1]
$ Homeowners insurance contracts—we enforce them as written.[2]
$ Commercial general liability insurance contracts—we enforce them as written.[3]

Not so with aviation insurance contracts. In Puckett v. U.S. Fire Insurance Co., we engrafted a causal-connection requirement into the policy, requiring the insurer to show that the insured’s breach actually caused the damage or accident.[4] The Court held that while the policy unequivocally suspended coverage if there was no valid airworthiness certificate, public policy nonetheless trumped the contract’s express terms and barred the insurer from denying coverage if the insured’s violation of the aircraft-inspection requirement did not contribute to the crash.[5] In short, Puckett granted an unbargained-for expansion of coverage in the face of a bargained-for exclusion from coverage.

Puckett’s judicial rewriting of the parties’ contract clashes head-on with our “modest, text-based approach” to interpreting contract language.[6] As we have stressed, Texas courts must stick to what policies say, not what we wish they said.[7] I agree with Chief Justice Pope’s spirited dissent in Puckett: “Courts are not in the business of writing insurance contracts. Our duty is to apply unambiguous contracts as they are written.”[8] We should either (1) overrule Puckett, (2) distinguish it,[9] or (3) explain forthrightly why we insist on applying a hazy, public policy-based interpretive standard to aviation insurance contracts (an area where public safety concerns should urge hard-and-fast enforcement of safety-related provisions).[10]

Puckett’s nontextual approach is starkly at odds with our insurance decisions generally, and with most American jurisdictions’ aviation-insurance decisions specifically.[11] The Court should join the mainstream, not grant aviation contracts their own interpretive jet stream. Because “we should strive for uniformity” in giving effect to unequivocal contract terms,[12] we should not apply one enforcement rule to aviation contracts and a different enforcement rule to all other contracts.

I would decide the case, and because the Court declines to do so, I respectfully dissent.

___________________________________
Don R. Willett
Justice

OPINION DELIVERED: January 11, 2008

[1] Fortis Benefits v. Cantu, 234 S.W.3d 642, 649 (Tex. 2007).
[2] Fiess v. State Farm Lloyds, 202 S.W.3d 744, 746 (Tex. 2006).
[3] Lamar Homes, Inc. v. Mid-Continent Cas. Co., ___ S.W.3d ___, ___ (Tex. 2007).
[4] 678 S.W.2d 936, 938 (Tex. 1984).
[5] Id.
[6] Fortis Benefits, 234 S.W.3d at 649.
[7] Fiess, 202 S.W.3d at 753 ("[I]n construing insurance policies where the language is plain and unambiguous, courts must enforce the contract as made by the parties, and cannot make a new contract for them, nor change that which they have made under the guise of construction." (internal quotations omitted) (quoting E. Tex. Fire Ins. Co. v. Kempner, 27 S.W. 122, 122 (Tex. 1894))); Nat'l Union Fire Ins. Co. v. CBI Indus., Inc., 907 S.W.2d 517, 520 (Tex. 1995) ("The primary concern of a court in construing a written contract is to ascertain the true intent of the parties as expressed in the instrument."); R & P Enters. v. LaGuarta, Gavrel & Kirk, Inc., 596 S.W.2d 517, 518 (Tex. 1980).
[8] 678 S.W. 2d at 940 (Pope, C.J., dissenting).
[9] Justice Duncan’s dissent in the court of appeals distinguished Puckett persuasively, pointing out how the policy exclusion in the instant case (requiring a minimum level of pilot experience) represented the “basis of the bargain,” while the missing airworthiness certificate in Puckett was deemed (inaccurately, in my view) a mere “technicality.” 198 S.W.3d 276, 288 (Duncan, J., dissenting).
[10] The anti-technicality statute—which forgives an insured’s breach or violation of the insurance policy unless it “contributed to cause the destruction of the property”—is facially inapplicable because it applies only to fire and personal property insurance, not to aviation insurance. Tex. Ins. Code § 862.054.
[11] See generally Noralyn O. Harlow, Annotation, Aviation Insurance: Causal Link Between Breach of Policy Provisions and Accident as Requisite to Avoid Insurer’s Liability, 48 A.L.R. 4th 778, 783 (1986) (“Most courts have agreed with the general rule that a causal link between the breach and the accident need not be proved where policy requirements relating to pilots are violated.”).
[12] Fiess, 202 S.W.3d at 752.

Supremos Provide Lack-Luster Lesson for Lousy Lawyers: Next Time, File an Answer!

New Year's Puzzler: Why did this attorney not file a general denial? ... and why did the Supremes deem the case worthy of their attention when both the trial court and the court of appeals had already reached the correct result? There surely must be more important issues in want of high court scrutiny than an attorney's failure to timely file an answer, and the continued applicability of the Craddock test in the default judgment context. But then again, a high court decision like this may provide grounds for the rebuttal that the current incumbents on the Texas Supreme Court do in fact recognize that plaintiffs deserve to win occasionally too - at least when their opponents' counsel exhibits willful indifference or incompetence, if not negligence.

Levine v. Shackelford, No. 06-0553 (Tex. Jan. 11, 2008)(per curiam)(trial procedure, defaulting defendant, default judgments, motion to set aside default judgment, Craddock test elements)
SOL LEVINE, DOROTHEA LEVINE, AND MARDAN ENERGY CORPORATION v. SHACKELFORD, MELTON & MCKINLEY, L.L.P.; BRAGG, CHUMLEA, MCQUALITY; AND JOSEPH G. CHUMLEA, P.C.; from Dallas County; 5th district (05-05-00374-CV, ___ S.W.3d ___, 04/07/06) Per Curiam Opinion

In this case, we consider whether the court of appeals applied the correct standard in affirming a trial court’s denial of a motion to set aside a default judgment. A three-part test determines whether a court should grant a motion for new trial to set aside a proper default judgment. Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124, 126 (Tex. 1939). The first part of the Craddock test requires that “the failure of the defendant to answer before judgment [i]s not intentional, or the result of conscious indifference on his part, but [i]s due to a mistake or an accident.” Id. When applying this part of the Craddock test, the court of appeals defined “conscious indifference” in terms of “a person of reasonable sensibilities under the same or similar circumstances.” ___ S.W.3d ___, ___ (Tex. App.—Dallas 2006, pet. denied) (citing Young v. Kirsch, 814 S.W.2d 77, 81 (Tex. App.—San Antonio 1991, no writ) (en banc)).

The court of appeals held that the trial court did not abuse its discretion in denying the motion for new trial, and affirmed the trial court’s denial. Id. at ___. Though the court of appeals articulated the “conscious indifference” requirement of the Craddock test incorrectly, it properly applied the test. We denied the petition for review, and now deny the motion for rehearing, but we write here to clarify the standard that the court of appeals used.

Three law firms sued Sol and Dorothea Levine and Mardan Energy Corporation (collectively, the Levines) for legal fees.[1] Before filing an answer, the Levines’ attorney requested a written standstill agreement from the law firms, “where no pleadings, including the Answer, will be filed for a 45 to 60 day period while we attempt to have the mediation process run its course.” When the law firms refused, the Levines’ attorney agreed to file an answer by the November 29, 2004 deadline, but then failed to do so. Having not received an answer, a law firm attorney attempted to contact the Levines’ attorney on December 6, 2004, advising that the law firms would take a default judgment if no answer was filed. The next day, the Levines’ attorney assured the law firms that an answer would be filed on December 8, 2004. On Wednesday, December 8, the Levines’ attorney emailed a draft of the proposed answer to the law firms, assuring them that he would send the answer to the court “by the end of the week.”

The law firms delivered discovery requests to the Levines’ attorney on December 15, 2004. The next day the parties attended mediation, which had been scheduled by agreement on November 24, 2004, though there still was no answer from the Levines on file with the court.

The law firms presented a default judgment motion to the trial court the next morning, eighteen days after the Levines’ attorney first promised to file an answer, which was granted without a hearing. The Levines claim that their attorney placed the answer, along with a filing letter, in his “outgoing mail bin” four days before the trial court signed the original default judgment on December 17, 2004. Neither the trial court nor the law firms received the answer. The Levines’ attorney never attempted to confirm that the answer had been filed. He did not even know until December 23, 2004, when his client informed him of the default judgment, that the clerk had not received the answer.

The Levines subsequently made several motions to set aside the default judgment and obtain a new trial, all of which were denied by the trial court. The court of appeals held that the Levines did not satisfy the first prong of the Craddock test, and affirmed the trial court’s refusal to set aside the default judgment. Id. at ___.

In applying the Craddock test to this case, the court of appeals examined the evidence and concluded that it “showed a pattern of conduct that disregarded deadlines, promises, procedures, and simple steps that a person of reasonable sensibilities would have taken to ensure that the answer was properly and timely filed.” Id. at ___. The proper standard, however is not a negligence standard. “[T]he Craddock standard is one of intentional or conscious indifference—that the defendant knew it was sued but did not care.” Fid. & Guar. Ins. Co. v. Drewery Constr. Co., 186 S.W.3d 571, 575–76 (Tex. 2006) (per curiam) (emphasis added). The Levines’ attorney knew of the November 29, 2004 deadline for answer in the suit.

He agreed to file a general denial by that date, but he did not do so. He again failed to meet an extended deadline. Though he eventually emailed a draft denial to the parties, he never attempted to confirm that an answer was filed, despite repeated discussions, emails, and contact with the opposing party warning him that if he did not file an answer, the law firms would take a default judgment. This pattern of ignoring deadlines and warnings from the opposing party amounts to conscious indifference.

The court of appeals incompletely described the standard that applies in this case. Noting that the complete definition of conscious indifference amounts to more than mere negligence, we deny the Levines’ motion for rehearing.

OPINION DELIVERED: January 11, 2008

[1] The law firms are Shackelford, Melton & McKinley, L.L.P.; Bragg, Chumlea, McQuality; and Joseph G. Chumlea, P.C. They brought suit to recover unpaid legal fees totaling over $150,000, dating back to litigation from which each firm, with the consent of the Levines, had been allowed to withdraw.

Was trial court's plenary power extended by this post-trial motion?

How may bites at the apple does a losing litigant get in the trial court prior to appeal? In its first opinion issued in 2008, the Texas Supreme Court confirms that the permissible bites go beyond one, but that a second motion for new trial does not, unlike other post-judgment motions, extend the trial court's plenary jurisdiction beyond 30 days after the judgment when the first such motion has already been been overruled. Accordingly, the supreme court sides with the court of appeals and denies mandamus sought by the losing defendant. While in the case in bar the ruling on this procedural issue benefits the prevailing tort paintiff, the new precedent will apply to plaintiffs and defendants alike, depending on who loses at trial and is not ready to throw in the towel. Given that the Supremes find the question correctly decided by the court of appeals, it is surprising that they bothered to issue an opinion at all. The reason must be that four justices did not join the rest, and instead precipitated the rare occurrence of a mandamus denial with two opinions. Perhaps one member switched sides following recent vocal criticism of the Court as being biased in favor of defendants, and increased media attention to the lopsided win-lose ratios of corporations and insurance companies on the one hand, and consumers and tort plaintiffs on the other.

In Re Brookshire Grocery Co., No. 05-0300, 250 S.W.3d 66 (Tex. Jan. 4, 2008)(Opinion by Wallace Jefferson) (posttrial motions, second motion for new trial, civil procedure, extension of trial court's plenary power jurisdiction) Dissent by Hecht

In this mandamus action, we determine whether a motion for new trial filed within thirty days of judgment, but after a preceding motion for new trial has been overruled, extends the trial court’s plenary power under Texas Rule of Civil Procedure 329b. Because we hold that it does not, we deny relator Brookshire Grocery Company’s petition for writ of mandamus

Our holding today does not preclude a party whose motion for new trial has been overruled from continuing to seek a new trial while the trial court is still empowered to act. Pursuant to Rule 329b(e), the trial court retains plenary power for thirty days after overruling a motion for new trial; thus, the losing party may ask the trial court to reconsider its order denying a new trial—or the court may grant a new trial on its own initiative—so long as the court issues an order granting new trial within its period of plenary power. See Moritz v. Preiss, 121 S.W.3d 715, 720 (Tex. 2003) (noting that a trial court can always “grant a new trial, or vacate, modify, correct or reform the judgment” during this time); see also Tex. R. Civ. P. 5 (trial court may not enlarge period for granting new trials except as stated in the rules).