Friday, May 23, 2008

Mandamus! Mandamus! - Texas Supreme Court's Power Grab Continues

Q: When does the Republican Supreme Court grant mandamus, a tool supposed to be used sparingly, and only under exceptional circumstances?

A: When its favorite defendants (health care providers, large corporations, insurance companies) need it, i. e., when they did not get their way with the judge in the trial court, and don't want to wait until final judgment to bring their appeal.

The Court is even willing to create new law when the occasion calls for it, most recently to second-guess a trial judge's ruling on a venue issue, the type of order for which interlocutory appeal is not permitted.

Voilà! There it comes: A makeover and enhancement of mandamus powers just in time to aid the tort-defendants in distress brought on by wrongful-death plaintiffs.

To justify the ruling limiting trial courts' discretion in venue rulings, and subjecting them to instant review by the appellate courts, the majority paints the specter of a plaintiff dragging a defendant through the courts of all 200+ counties in the state in search of the best loci to pick a jury (affectionately referred to as "judicial hellholes" by tort reformers). But that's not all. The Court marshals res judicata to undergo a remake too. So far the judicial done-deal doctrine has not had application to claims that were nonsuited (and thus were not taken to trial, not to mention a judgment on the merits), but now it serves to butress the finality of the first venue transfer secured by the defendant, the preliminary nature of venue rulings notwithstanding.

Justice Wainwright lamely protests, but goes along in a two-sentence concurrence because the Court having crossed the Rubicon last week, the new precedent is now a jurisprudential fait accompli.

In re Team Rocket, LP, No. 06-0414 (Tex. May 23, 3008)(Opinion by Justice Green)(mandamus granted to enforce first transfer of venue; nonsuit and refiling in third county disapproved)
IN RE TEAM ROCKET, L.P., MLF AIRFRAMES, INC., AND MARK L. FREDERICK; from Fort Bend County; 14th district (14-06-00136-CV, ___ S.W.3d ___, 04-25-06)stay order issued June 13, 2006, lifted The Court conditionally grants the petition for writ of mandamus. Justice Green delivered the opinion of the Court.


Although we generally do not grant a petition for mandamus for venue determinations absent extraordinary circumstances, we have granted mandamus relief when the trial court issued an improper order transferring venue that “wrongfully burdened fourteen other courts in fourteen other counties, hundreds of potential jurors in those counties, and thousands of taxpayer dollars in those counties.” Masonite, 997 S.W.2d at 199.

When, as in this case, a trial court improperly applied the venue statute and issued a ruling that permits a plaintiff to abuse the legal system by refiling his case in county after county, which would inevitably result in considerable expense to taxpayers and defendants, requiring defendants to proceed to trial in the wrong county is not an adequate remedy. See Prudential, 148 S.W.3d at 137. “[A]n appellate remedy is not inadequate merely because it may involve more expense or delay than obtaining an extraordinary writ,” Walker, 827 S.W.2d at 842, but extraordinary relief can be warranted when a trial court subjects taxpayers, defendants, and all of the state’s district courts to meaningless proceedings and trials. See Prudential, 148 S.W.3d at 137.We have granted mandamus relief in the context of Rule 87 venue rulings where, as here, the trial court made no effort to follow the rule. See Henderson v. O’Neill, 797 S.W.2d 905, 905 (Tex. 1990) (per curiam); cf. Bridgestone/Firestone, Inc. v. Thirteenth Court of Appeals, 929 S.W.2d 440, 442 (Tex. 1996) (per curiam) (explaining that, in that Rule 87 venue case, no extraordinary circumstances existed to justify mandamus relief).

In this case, the Creekmores defied the Harris County trial court’s venue order by attempting to have another court revisit the question of venue, which had already been decided. To say that the Fort Bend County trial court, which violated statutory venue procedure and Rule 87(5), committed reversible error while declining to correct the injustice would compromise the integrity of the venue statute and result in an irreversible waste of resources.

Interestingly, the Court was not so concerned about wasting resources when it culled the arbitration award in favor of Lemon Home Owners Cull on request of Perry Homes, and ordered a trial on the merits (while routinely enforcing arbitration when requested by employers and corporate defendants against claimants who don't have deep pockets).

Justice Wainwright delivered a concurring opinion, in which Chief Justice Jefferson and Justice O'Neill joined.

For the reasons expressed in my dissent in In re McAllen Medical Center, __ S.W.3d __, __ Tex. 2008), I respectfully disagree with the Court’s expansion of its mandamus jurisdiction beyond established legal tenets. Because the Court has indeed crossed that bridge, I reluctantly join the Court’s opinion.

Supreme Court eyes suicide liability of hospital that discharged love-sick young man later found hanging from a tree

The disposition, delivered by Hecht, is predictible: Health care provider not liable - Jury award reversed. Two justices, however, wrote separately, pumping life back into the Jeffersonian thesis (articulated in a TEXAS LAWYER interview earlier this year) that the Court is not monolithic -- recent media attention and concern over an excessive number of anonymous per curiam opinions notwithstanding.

Providence Health Center v. Dowell, No. 05-0386 (Tex. May 23, 2008)(Nathan Hecht)
(HCLC, suicide risk management, medical treatment) (court concludes that discharge from Defendant's ER did not proximately cause young man's death by hanging.)

Twenty-one-year-old Lance Dowell was taken to the emergency room and treated for a superficial, self-inflicted cut on his left wrist. Distraught over losing his girlfriend, he had been threatening to kill himself earlier, but he had calmed down and did not want to be hospitalized. He was released on his promises that he would not commit suicide, would stay with his parents, and would go to the local Mental Health and Mental Retardation center for a follow-up assessment. His mother, a registered nurse, was with him and did not object to his release. He went to a family reunion and to a rodeo with his brother, repeatedly assuring his mother that he was okay. His mother and brother believed him, and no one else reported anything unusual in his behavior. But thirty-three hours after his release, he hanged himself. Lance’s parents now contend that his tragic death was proximately caused by the negligence of the emergency room physician and nurse in releasing him. We hold that any connection between his release and death is too attenuated for proximate cause. Accordingly, we reverse the judgment of a divided court of appeals[1] and render judgment for petitioners.


Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petitions for review and without hearing oral argument, the Court reverses the court of appeals' judgment and renders judgment.

Justice Hecht delivered the opinion of the Court, in which Justice Scott Brister, Justice Paul Green, Justice Phil Johnson, and Justice Don R. Willett joined.

Justice Dale Wainwright delivered an opinion concurring in part and dissenting in part.

Justice Harriet O'Neill delivered a dissenting opinion, in which Chief Justice Jefferson and Justice Medina joined.

Saturday, May 17, 2008

May 16, 2008 Texas Supreme Court Activism

Man-Bites-Dog News From the Tort-Reform Front Rehashed

Attention! Attention! Texas Supreme Court Rules Against Doctor for the Second Time - No dissent by justices running for re-election. No dissent - or even concurrence - by high court judges not facing the voters this year either.

In an apparent effort to prove that it does not rule for the defendants in medical malpractice appeals 100% of the time, the Texas Supreme Court reissues its decision in the recently decided botched-intubation case from Houston. The remarkable holding in that case was that the anesthesiologist who pumped oxygen into the stomach of a newborn in respiratory distress - rather than into the baby's lungs - was not a Good Samaritan after all, even though the doctor insisted he was not going to charge the parents for this "service".

Lest the Supremes be accused of undue sympathy for the parents of the brain-damaged victim of the intubation-gone-awry, they again instruct the court of appeals to look for other reasons why the doctor should not be held liable.

Chau v. Riddle, MD, No. 07-0035 (Tex. May 16, 2008)(substituted per curiam opinion on motion for rehearing) (summary judgment for defendant based on Good Samaritan defense reversed)
THAO CHAU AND HA DIEN DO, INDIVIDUALLY, AND ON BEHALF OF THEIR MINOR CHILD, S.D.D. v. JEFFERSON RIDDLE, M.D. AND GREATER HOUSTON ANESTHESIOLOGY, P.A.; from Harris County; 1st district (01-04-00551-CV, 212 S.W.3d 699, 09-28-06) The Court's opinion of February 15, 2008 is withdrawn and the opinion of this date is substituted.

In other news on the judicial tort reform front, the Court grants health care providers a new tool to have malpractice suits dismissed when the trial court refused to do so - instant appellate relief via mandamus if interlocutory appeal won't do. How many possible bites at the apple does that add up to, keeping in mind that the denial of mandamus does not preclude subsequent appeal on the same issue from the final judgment? Probably enough to leave no piece of the apple to the plaintiffs.

In Re McAllen Medical Center, Inc., No. 05-0892 (Tex. May 16, 2008) (Majority Opinion by Scott Brister)(mandamus relief available to compel dismissal of med-mal suits)
IN RE MCALLEN MEDICAL CENTER, INC., D/B/A MCALLEN MEDICAL CENTER AND UNIVERSAL HEALTH SERVICES, INC.; from Hidalgo County; 13th district (13-05-00441-CV, ___ S.W.3d ___, 10-05-05)real parties in interest's motion to abate dismissed as mootrelators' unopposed motion for partial dismissal grantedreal parties in interest's motion to seal document grantedrelators' motion to seal motion exhibits and restrict review to in camera inspection only granted. The Court conditionally grants the petition for writ of mandamus. Justice Brister delivered the opinion of the Court, in which Justice Hecht, Justice Medina, Justice Green, Justice Johnson and Justice Willett joined.
Justice Wainwright delivered a dissenting opinion, in which Chief Justice Jefferson and Justice O'Neill joined.

In all, the Supreme Court issued opinions in seven cases (without subtracting 1 for the Riddle sequel). Three of the court's opinions drew dissents. Three were issued as per curiams. Here are the cases not yet mentioned above:

Economic Patriotism and Protectionism: How to fleece (or not) out-of-state insurers

First American Title Ins. Co. v. Susan Combs, Comptroller, No. 05-0541 (Tex. May 16, 2008)(Majority Opinion by Don Willett) (taxation of out-of-state insurers, retaliatory tax)
FIRST AMERICAN TITLE INSURANCE COMPANY AND OLD REPUBLIC NATIONAL TITLE INSURANCE COMPANY v. SUSAN COMBS, COMPTROLLER OF PUBLIC ACCOUNTS OF THE STATE OF TEXAS, AND GREGG ABBOTT, ATTORNEY GENERAL OF TEXAS; from Travis County; 3rd district (03-04-00342-CV, 169 S.W.3d 298, 06-03-05) The Court affirms the court of appeals' judgment.Justice Willett delivered the opinion of the Court, in which Chief Justice Jefferson, Justice O'Neill, Justice Green, and Justice Johnson joined.
Justice Hecht delivered a dissenting opinion, in which Justice Wainwright, Justice Brister, and Justice Medina joined.

Sub-governments and sub-government lawyers face off against each other over lake-water rights

Canyon Regional Water Authority v. Guadalupe-Blanco River Authority, No. 06-0873 (Tex. May 16, 2008)(Opinion by Paul Green) (intergovernmental dispute over easement for water extraction from lake, condemnation power)
CANYON REGIONAL WATER AUTHORITY v. GUADALUPE-BLANCO RIVER AUTHORITY; from Guadalupe County; 4th district (04-05-00943-CV, 211 S.W.3d 351, 06-21-06) The Court affirms in part and reverses in part the court of appeals' judgment and remands the case to the trial court. Justice Green delivered the opinion of the Court.

Back to Business as Usual on the ADR front: Big Corporate Defendant Couldn't Possibly Have Waived Right to Arbitrate (That's something to be ascribed only to consumers when they insist on arbitration and the defendant would rather not. See Bob-Perry-The-Judicial-Campaign-Financier Homes vs. The Culls, Lemon Home Owners, two weeks ago)

In Re CitiGroup Global Markets, Inc., No. 06-0886 (Tex. May 16, 200)(per curiam)(arbitration compelled, no express or implied waiver of right to arbitrate found)
IN RE CITIGROUP GLOBAL MARKETS, INC. (F/K/A SALOMON SMITH BARNEY, INC.), CITIGROUP, INC., AND STACY OELSEN; from Dallas County; 5th district (05-05-01430-CV, 200 S.W.3d 742, 06-28-06)stay order issued November 21, 2006, lifted 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

Let Inmate Appeal For Free - He Is Not Gonna Win Anyhow. Makes us look good if we cut some underdog loser some slack and show that the courts are open for civil suits even by prisoners. (Let's deny the right to litigate and to appeal when it really matters)

Higgings v. Randall County Sheriff's Office (Higgins II), No. 06-0917 (Tex. May 16, 2008)(Opinion by Harriet O'Neill) LAWRENCE HIGGINS v. RANDALL COUNTY SHERIFF'S OFFICE; from Randall County; 7th district (07-05-00004-CV, ___ S.W.3d ___, 08-22-06) 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.Justice O'Neill delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Hecht, Justice Brister, and Justice Medina joined.
Justice Green delivered a dissenting opinion, in which Justice Wainwright and Justice Willett joined. (Justice Johnson not sitting)

Supreme Court Business as Usual: Governmental defendant prevails in case brought under Tort Claims Act - Gee....How could City know that uneven road (2 inch difference between lanes) would cause motorcyclyst to crash? After all, City inspector had given the road a passing grade of "C".

City of Dallas v. Reed, No. 07-0469 (Tex. May 16, 2008)(per curiam) (TTCA, premises liability, unsafe road condition, special defect, plea to the jurisdiction, no knowledge of accident hazard)
CITY OF DALLAS v. KENNETH REED; from Dallas County; 5th district (05-06-01652-CV, 222 S.W.3d 903, 04-25-07) 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 renders judgment. Per Curiam Opinion

Saturday, May 3, 2008

The Bob Perry Case: Supreme Court Turns Arbitration-Averse for the Occasion

Q: When does the Texas Supreme Court NOT like arbitration?

A: When the consumer wants it (and wins). - After all, the purpose of arbitration is to protect business against aggrieved consumers and against the greedy plaintiff's bar.

Austin Supremos - über-eager for years to force common folk like consumers and workers to arbitrate rather than litigate their complaints against businesses and employers (even in the absence of their written consent to an arbitration clause) - overturns arbitration award in favor of home owners who had brought claim against builder and warranty company for lousy home construction and had prevailed in arbitration. Court holds that the plaintiffs deserved it because they (i.e., their evil lawyers) had employed discovery to research their claims prior to demanding arbitration, and had thus forfeited the right to arbitrate ... or so the reasoning goes. Both the trial court and the court of appeals had opined otherwise.

The unilateral right to enforce arbitration clauses

Perry Homes v. Cull, No. 05-0882 (Tex. May 2, 2008)(Opinion by Scott A. Brister) (trial court should not have enforced plaintiffs' contractual right to compel arbitration, and erred in confirming the award)

Full case style and details: PERRY HOMES, A JOINT VENTURE, HOME OWNERS MULTIPLE EQUITY, INC., AND WARRANTY UNDERWRITERS INSURANCE COMPANY v. ROBERT E. CULL, AND S. JANE CULL; from Tarrant County; 2nd district (02-04-00052-CV, 173 S.W.3d 565, 08-31-05)

Disposition by the Supreme Court: The Court reverses the court of appeals' judgment, vacates the arbitration award, and remands the case to the trial court. Justice Brister delivered the opinion of the Court, in which Justice Hecht, Justice O'Neill, Justice Wainwright, and Justice Medina joined, and in which Chief Justice Jefferson, Justice Green, Justice Johnson, and Justice Willett joined as to parts I-V.

Justice O'Neill delivered a concurring opinion.

Justice Johnson wrote an opinion concurring and dissenting in part, which was joined by Chief Justice Jefferson and Justice Green

Justice Willett delivered an opinion concurring in part and dissenting in part.

The Opinion in appellate court below: Perry Homes v. Cull, 02-04-00052-CV, (Tex.App.- Fort Worth, Aug 31, 2005, pet . filed)

Appellees Robert and Jane Cull (“the Culls”) sued Appellants Perry Homes, A Joint Venture (“Perry Homes”), Home Owners Multiple Equity, Inc. d/b/a Home/RWC of Texas (“HOME”), and Warranty Underwriters Insurance Company (“WUIC”) for the faulty construction of their home. Approximately a year after filing suit, the Culls filed a motion to compel arbitration. Although Appellants opposed arbitration, the trial court granted the Culls’ motion to compel arbitration. After arbitration was completed, the Culls filed a motion to confirm the arbitration award, and Appellants filed a motion to vacate or alternatively to modify the arbitration award. In its final judgment, the trial court confirmed the arbitration award. In six issues, Appellants now generally argue that the trial court erred by compelling the parties to participate in arbitration, confirming the resulting arbitration award, and denying Appellants’ motion to vacate or modify that award. Because we hold that (1) the Culls did not waive arbitration, (2) the arbitrator was not evidently partial, (3) the arbitrator did not act in manifest disregard of the law, and (4) the Culls did not fail to meet their summary judgment burden, but (5) the trial court did err by failing to modify its award of post-judgment interest that was awarded in addition to the interest in the arbitration award, we affirm the trial court’s judgment as modified.

Related terms and links: arbitration clause, arbitration award consumer law homeowner law residential construction law and litigation Recent Texas abitration case law decisions from the Texas Supreme Court (Tex. 2007) Arbitration appellate decisions from the Houston Courts of Appeals Other Opinions by Texas Supreme Court Justice Scott A. Brister