Discovery Mandamus Granted to Protect Trade Secrets: In Re Union Pacific Railroad Company (Tex. 2009)

AND THE FIRST WINNER IN THE NEW FISCAL YEAR IS -----------

----- A TORT DEFENDANT !

Texas Supreme Court Grants Mandamus Petition to Protect Railroad from Discovery Requests

In its first case decided with opinion in the new fiscal year, the Texas Supreme Court granted mandamus relief last Friday to protect a corporate defendant from discovery requests propounded by a tort plaintiff in a suit stemming from a train collision and escape of toxic fumes.

No surprises here.

The Supreme Court (currently consisting of eight members pending appointment of a replacement for former Justice Scott Brister) granted mandamus relief to validate the defendant's motion to quash even though the plaintiff's attorney had agreed to protect the company's trade secrets through an appropriate order of protection from disclosure to third parties. The San Antonio Court of Appeals had denied the railroad's petition for mandamus relief.

In Re Union Pacific Railroad Co. No. 08-0740 (Tex. Sep. 25, 2009) (per curiam) (discovery mandamus granted to protect trade secrets, privilege, pricing information)
IN RE UNION PACIFIC RAILROAD COMPANY; from Bexar County;
4th district (04-08-00388-CV, ___ SW3d ___, 08-20-08)
Pursuant to Texas Rule of Appellate Procedure 52.8(c), without hearing oral argument, the Texas Supreme Court conditionally grants the petition for writ of mandamus.

EXCERPT FROM THE PER CURIAM OPINION:

The potential harm to Union Pacific due to possible disclosure is also problematic. Constanzo first points to the protective order. The trial court did enter an order restricting those who could view the rate structures, but that alone does not ensure that an order will not violate the trade secret privilege. See id. at 731–32 (granting mandamus relief where trial court ordered relator to disclose trade secrets only to three attorneys and an expert witness and only on paper that could not be photocopied).

Constanzo claims the order is narrow, but we disagree.

The order requires Union Pacific to release rate structures related to all hazardous materials shipped for OxiChem from June 2003 through June 2005. It also requires the release of all OxiChem rate structures for chlorine chemicals for the same time period. Worrell explained the potential harm associated with this disclosure: “Disclosure of the information would irreparably harm Union Pacific because it would provide competitors with an advantage in predicting Union Pacific pricing and undercutting Union Pacific efforts to market and conduct its business with its customers in a competitive fashion.”

Constanzo failed to meet her burden of establishing that the rate structures are “material and necessary” to the case. Bass, 113 S.W.3d at 743. “[N]o adequate appellate remedy exists if a trial court orders a party to produce privileged trade secrets absent a showing of necessity.” Id. at 745. Accordingly, without hearing oral argument, Tex. R. App. P. 52.8(c), we conditionally grant Union Pacific’s petition for writ of mandamus and direct the trial court to vacate its May 9, 2008 order compelling production of rate structures and issue further orders consistent with this opinion. We are confident the trial court will comply. The writ will issue only if it fails to do so.
* * *
FN2: When Union Pacific filed its petition for writ of mandamus, underlying proceedings were pending in the 73rd Judicial District Court and the 288th Judicial District Court in Bexar County. Honorable Karen H. Pozza, presiding judge of the 407th Judicial District Court in Bexar County, signed the pretrial order at issue in this mandamus proceeding. When courts use central docketing, as in Bexar County, we generally treat the judge who signed the order as the respondent. In re Schmitz, 285 S.W.3d 451, 454 (Tex. 2009).

New Trial Granted on Defense Verdict: Supremes Find Trial Judges Guilty of Abuse of Discretion (under new rule decreed hereby)

IN RE COLUMBIA MEDICAL CENTER OF LAS COLINAS, SUBSIDIARY, L.P. D/B/A LAS COLINAS MEDICAL CENTER, ANTONETTE CONNER, AND ANNA MATHEW (TEX. 2009)

EX POST FACTO (CASE) LAW FOR THE OCCASION:

Supreme Court to trial judges: If you follow existing law and grant a new trial in the interests of justice, you may be abusing your discretion. If you did not know, we are telling you now.

Suggestion for bench and bar: Keep in mind how the Supremes would feel about Defendants having a favorable verdict taken from them! And also be nice to the Defense. Don't ask for, and don't grant, default judgment just because the defendant's lawyer went AWOL after the jury was selected.

SUPREME COURT CRACKS DOWN ON JUDGES WHO GRANT NEW TRIALS

Under Texas law, the decision to grant a new trial has long been reserved to the discretion of the trial court judge, who may do so in the interest of justice. No more. Mere justice, without more, will no longer suffice as a reason, after last week's Supreme Court decision in In Re Columbia Medical Center of Las Colinas, No. 06-0416 (Tex. Jul. 3, 2009)(Johnson).

Trial judges must now justify themselves, lest they be found guilty of abuse by higher authority.

UNWITTING ABUSE OF DISCRETION

In this case, and in two others decided the same day, the trial court judge followed established precedent in granting a new trial “in the interest of justice” following jury verdicts favorable to the health care providers (and an asbestos defendant in another case).

What were the Supremes to do to assure the “right” outcome for the favorite constituencies when current law does not permit it? The answer is simple: Change the law.

Existing law gave trial judges much discretion in deciding to grant a new trial after a jury verdict “in the interest of justice” No rule or statute required the trial judge to explain the specific reasons why doing so was necessary. Nor would a request for findings of facts and conclusions of law have been appropriate under such circumstances. After all, this type of order is anything but an order disposing of all claims and parties with a final judgment. For the same reason, the ruling for a new trial could not be appealed. Nor is there a statutory basis for an interlocutory appeal from an order granting a new trial.

But not to worry. Where there is power, there is a way.

Existing precedents favoring plaintiffs? So it be. Who says that precedent cannot be made more favorable when med-mal and asbestos defendants suffer the indignity of having the fruits of a favorable jury verdict taken away from them (a fate the Supremes inflict with regularity on tort Plaintiffs and their lawyers). Who says we can't set new precedent?

And so they did. Five of Nine. And that suffices.

Justice O'Neill, joined by Chief Jefferson, Medina, and Green, dissented in jurisprudential disgust at the majority's disrespect for precedent and bewailed the majority's attack on the integrity of the judges below.

SUPREME LAWMAKERS AT WORK

Acknowledging that the type of order at issue could not immediately be appealed because no statutory authorization existed for interlocutory appellate review, much less by the Supreme Court, the majority - spearheaded by Johnson – invokes its discretionary mandamus powers instead as a basis to intervene in the pending proceedings below. The extraordinary writ is necessary, it reasons, because otherwise the defendants would not have a remedy.

The majority, in effect, finds that the trial judges who had ruled against the defendants in the three cases, had abused their discretion by not including specific reasons in their new trial orders, something they had no obligation to do until the majority established such a duty by fiat last Friday.

The lesson: With us, you can't win. If the law is on your side, we will just change the law. If a rule we would like to use to produce the desired outcome does not exists, we'll just create it. And if the legislature has not provided for us to get immediately involved when defendants are unjustly deprived of the courtroom victory they undoubtedly deserve (by authorizing interlocutory appeal), we'll just expand our mandamus powers to call the trial judge to task, and hold them accountable.

So what is the new standard for articulating a sufficient reason for setting aside a jury verdict and granting a new trial? None. The Supremes keep the trial courts guessing. But the message is clear. If you grant a new trial after the defense has had its way with the jury, be prepared to be charged with - and found guilty of - abuse of discretion. And we'll put your name in the written opinion for the whole world to see. After all, we are mandamusing you. We get to meddle with you and how you run your court, but you don't get to mess with us.

The ultimate irony: Mandamus is a remedy to be issued against a specific judge to correct an error. But in at least two of the cases at issue, the original judge is no longer in office. The mandamus goes against successor judges who did not preside over the jury trials. How are they to devine the reasons why their predecessors concluded that something serious enough went awry in those trials to warrant a new trial “in the interest of justice”? How are they to fill the void created by the Supreme's newly established duty to deliver a written justification?

And how are the judges who left office ever to clear themselves of the allegations of abuse with respect to the propriety of their ruling?

SUPREME COURT ORDERS TRIAL COURTS TO EXPLAIN WHY THEY GRANTED NEW TRIALS: "In the Interest of Justice" WILL NO LONGER BE GOOD ENOUGH

In Re Columbia Medical Center of Las Colinas, No. 06-0416 (Tex. Jul. 3, 2009)(Johnson) (mandamus
granted) (jury trial, reasons for trial court judge disregarding jury verdict and granting new trial required)
(mandamus granted to order trial court to state specific reasons for setting aside jury verdict and granting a
new trial)
IN RE COLUMBIA MEDICAL CENTER OF LAS COLINAS, SUBSIDIARY, L.P. D/B/A LAS COLINAS MEDICAL
CENTER, ANTONETTE CONNER, AND ANNA MATHEW; from Dallas County; 5th district (05-06-00611-CV, ___ SW3d ___, 05-12-06 Opinion of the Dallas Court of Appeals) as reinstated; stay order issued August 29, 2008, lifted. The Court conditionally grants in part and denies in part the petition for writ of mandamus.
Justice Johnson delivered the opinion of the Court, in which Justice Hecht, Justice Wainwright, Justice Brister, and Justice Willett joined. [pdf]
Justice O'Neill delivered a dissenting opinion, in which Chief Justice Jefferson, Justice Medina, and Justice
Green joined.

AFTER MANDAMUS PETITION-ABATEMENT PING-PONG INVOLVING THREE DIFFERENT TRIAL COURT JUDGES, SUPREMES ORDER THE LAST ONE TO COME UP WITH A VALID EXPLANATION WHY NEW TRIAL WAS GRANTED.

In Re Baylor Medical Center at Garland, No. 06-0491 (Tex. Jul 3, 2009) (mandamus granted)(Johnson)
(trial judge granted new trial and then resigned, mandamus abatement, current judge ordered to provide
reasons for granting new trial)
IN RE BAYLOR MEDICAL CENTER AT GARLAND; from Dallas County;
5th district (05-05-01663-CV, ___ SW3d ___, 01-04-06 Opinion of the Dallas Court below)
as reinstated, stay order issued August 29, 2008, lifted. The Court conditionally grants in part and denies in part the petition for writ of mandamus.
Justice Johnson delivered the opinion of the Court, in which Justice Hecht, Justice Wainwright, Justice Brister, and Justice Willett joined.
Justice O'Neill delivered a dissenting opinion, in which Chief Justice Jefferson, Justice Medina, and Justice
Green joined.

TRIAL JUDGE ORDERED TO FURNISH EXPLANATION FOR GRANTING NEW TRIAL

In Re E.I. Du Pont de Nemours and Co., No. 08-0625 (Tex. Jul. 3, 2009)(Johnson) (mandamus granted: trial court's grant of new trial following jury verdict requires specific explanation)
IN RE E.I. DU PONT DE NEMOURS AND COMPANY; from Jefferson County;
9th district (09-08-00318-CV, ___ SW3d ___, 07-24-08 Opinion of the Ninth Court of Appeals)
Pursuant to Texas Rule of Appellate Procedure 52.8(c), without hearing oral argument, the Court
conditionally grants in part and denies in part the petition for writ of mandamus.
Justice Johnson delivered the opinion of the Court, in which Justice Hecht, Justice Wainwright, Justice Brister, and Justice Willett joined.
Justice O'Neill delivered a dissenting opinion, in which Chief Justice Jefferson, Justice Medina, and Justice
Green joined.

Texas Supreme Court Again Expands Mandamus Powers [for the benefit of favored defendants]

July 3, 2009 - Opinions Released

TEXAS SUPREME COURT ORDERS JUDGES TO EXPLAIN AND JUSTIFY WHY THEY GRANTED NEW TRIALS [in cases in which tort claim defendants had prevailed with the jury]

"In the Interest of Justice" - a common label for judicial discretion in that regard and in others - will no longer pass muster as a sufficient ground.

In other cases in which decisions were released just in time for Fourth of July, the Supremes take additional steps to assure that prevailing defendants in health-care liability litigation can saddle unsuccessful plaintiffs and/or their lawyers with attorneys fees and costs as a sanction ... and as deterrence for other would-be plaintiffs: Judicial Med-Mal Reform Plus

In Re Columbia Medical Center of Las Colinas (Tex. 2009),
No. 06-0416 (Tex. Jul. 3, 2009)(Johnson) (mandamus granted) (reasons for trial court judge disregarding jury verdict and granting new trial required) (mandamus relief granted to direct trial court to elaborate on reasons for setting aside jury verdict and granting new trial) (also see --> JNOV) IN RE COLUMBIA MEDICAL CENTER OF LAS COLINAS, SUBSIDIARY, L.P. D/B/A LAS COLINAS MEDICAL CENTER, ANTONETTE CONNER, AND ANNA MATHEW; from Dallas County;5th district (05-06-00611-CV, ___ SW3d ___, 05-12-06 Opinion of the Dallas Court of Appeals) as reinstated; stay order issued August 29, 2008, lifted. The Court conditionally grants in part and denies in part the petition for writ of mandamus. Justice Johnson delivered the opinion of the Court, in which Justice Hecht, Justice Wainwright, Justice Brister, and Justice Willett joined. [pdf] Justice O'Neill delivered a dissenting opinion, in which Chief Justice Jefferson, Justice Medina, and Justice Green joined. [pdf] E-Briefs in Tex 2009 No. 06-0416 IN RE COLUMBIA MEDICAL CENTER OF LAS COLINAS
The Texas Constitution provides that the right of trial by jury “shall remain inviolate.” Tex. Const. art. 1, § 15. The issue before us is whether, after a jury has rendered its verdict, the trial court may disregard that verdict, grant a new trial, and explain its action only as being “in the interests of justice and fairness.” We conclude that just as appellate courts that set aside jury verdicts are required to detail reasons for doing so, trial courts must give more explanation than “in the interest of justice” for setting aside a jury verdict. We conditionally grant mandamus relief directing the trial court to more specifically set out the reasons for which it set aside the jury verdict and granted a new trial.Conclusion: We conditionally grant relief. We direct the trial court to specify the reasons it refused to enter judgment on the jury verdict and ordered a new trial as to Columbia. The reasons should be clearly identified and reasonably specific. Broad statements such as “in the interest of justice” are not sufficiently specific. We are confident the trial court will comply. The writ will issue only if it fails to do so.

AFTER MANDAMUS PETITION-ABATEMENT PING-PONG INVOLVING THREE DIFFERENT TRIAL COURT JUDGES, SUPREMES ORDER THE LAST ONE TO SERVE UP A VALID EXPLANATION WHY NEW TRIAL WAS WARRANTED IN THE CASE.

In Re Baylor Medical Center at Garland (Tex. 2009) ,
No. 06-0491 (Tex. Jul 3, 2009) (mandamus granted)(Johnson) (trial judge granted new trial and then resigned, mandamus abatement, current judge ordered to provide reason for granting new trial)
IN RE BAYLOR MEDICAL CENTER AT GARLAND; from Dallas County; 5th district (05-05-01663-CV, ___ SW3d ___, 01-04-06 Opinion of the Dallas Court below) as reinstated, stay order issued August 29, 2008, lifted. The Supreme Court conditionally grants in part and denies in part the petition for writ of mandamus. Justice Johnson delivered the opinion of the Court, in which Justice Hecht, Justice Wainwright, Justice Brister, and Justice Willett joined. [pdf]
Justice O'Neill delivered a dissenting opinion, in which Chief Justice Jefferson, Justice Medina, and Justice Green joined. [pdf] View Electronic Briefs in Tex. 2009 No. 06-0491 IN RE BAYLOR MED. CTR. AT GARLAND

NO PARTNERSHIP FORMED, AND THUS NONE EXISTED, UNDER TEXAS REVISED PARTNERSHIP ACT

Ingram v. Deere (Tex. 2009) ,
No. 06-0815 (Tex. Jul 3, 2009)(Wainwright)(dispute over existence of partnership under TRPA, partnership criteria/factors, fiduciary duty) (existence of partnership not proven, take-nothing judgment reinstated)
JESSE C. INGRAM, PH.D. AND BEHAVIORAL PSYCHOLOGY CLINIC, P.C. v. LOUIS DEERE, D.O. AND HILLVALE MEDICAL GROUP ASSOCIATION D/B/A HILLVALE MEDICAL ASSOCIATION; from Dallas County; 5th district (05-05-00063-CV, 198 SW3d 96, 04-27-06 Opinion of the Dallas court of Appeals) 2 petitions. The Court reverses the court of appeals' judgment and reinstates the trial court's judgment. Justice Wainwright delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Hecht, Justice Medina, Justice Green, and Justice Willett joined, in which Justice O'Neill and Justice Brister joined except as to part II.D.5.a, and in which Justice Johnson joined except as to part II.D.2. [pdf]
Justice Johnson delivered a concurring opinion. [pdf] View Electronic Briefs in Tex. 2009 No. 06-0815 JESSE C. INGRAM, PH.D. v. LOUIS DEERE, D.O.
In this case, we review a court of appeals judgment reinstating a jury verdict finding that Louis Deere, D.O. and Jesse C. Ingram, Ph.D. formed a partnership pursuant to the Texas Revised Partnership Act (TRPA).TRPA lists five factors to be considered in determining whether a partnership has been formed. This determination should be made by examining the totality of the circumstances in each case, with no single factor being either necessary or sufficient to prove the existence of a partnership. Here, the evidence is legally insufficient to establish that a partnership existed between Ingram and Deere. Because the evidence of the formation of a partnership is legally insufficient, we do not address the issue raised in Ingram’s cross-petition challenging the court of appeals’ decision that Ingram owed Deere a fiduciary duty. Accordingly, we reinstate the trial court’s take-nothing judgment in favor of Ingram and reverse the court of appeals’ judgment.Whether a partnership exists must be determined by an examination of the totality of the circumstances. Evidence of none of the factors under the Texas Revised Partnership Act will preclude the recognition of a partnership, and even conclusive evidence of only one factor will also normally be insufficient to establish the existence of a partnership under TRPA. However, conclusive evidence of all five factors establishes a partnership as a matter of law. In this case, Deere has not provided legally sufficient evidence of any of the five TRPA factors to prove the existence of a partnership. Accordingly, we reverse the court of appeals’ judgment and reinstate the trial court’s take-nothing judgment.

APPRAISAL PROVISION IN INSURANCE CONTRACT ENFORCED

State Farm Lloyds v. Johnson (Tex. 2009),
No. 06-1071 (Tex. Jul. 3, 2009)(Brister) (INSURANCE LAW: appraisal clause in insurance context, hail damage to home of insured property owner) STATE FARM LLOYDS v. BECKY ANN JOHNSON; from Collin County; 5th district (05-05-00640-CV, 204 SW3d 897, 10-27-06 Opinion of the Dallas Court of Appeals) The Court affirms the court of appeals' judgment. Justice Brister delivered the opinion of the Court. [pdf] View Electronic Briefs in Tex. 2009 No. 06-1071 STATE FARM LLOYDS v. JOHNSON
Appraisal clauses have appeared in most property insurance policies in Texas for many years. Although they rarely detail the scope of appraisal, there has rarely been any litigation about it. The parties here agree that the scope of appraisal includes damage questions and excludes liability questions, but they disagree which is involved in this dispute about hail damage to a homeowner’s roof. Because an appraisal has yet to take place, we agree with the insured that the record does not establish that it will exceed the permissible scope of appraisal. Accordingly, we affirm the court of appeals’ judgment in favor of the insured.We do not decide today whether the appraisal conducted on remand will necessarily be binding. The summary judgment record does not, and probably cannot, answer that question until after the appraisal has taken place. But for the reasons stated above, we affirm the court of appeals’ order granting Johnson’s motion for summary judgment to compel State Farm to participate in the appraisal process, and remanding the issue of her attorney’s fees to the trial court for consideration.

SUPREMES AGAIN GRANT REVIEW TO VINDICATE HEALTH CARE DEFENDANT'S CLAIM TO SANCTIONS AFTER ABORTIVE MED-MAL SUIT - INTERLOCUTORY APPEAL CONCERNING EXPERT REPORT OBJECTIONS WAS NOT REQUIRED AS A PRELUDE.

Hernandez, MD v. Ebrom (Tex. 2009),
No. 07-0240 (Tex. Jul 3, 2009)(Johnson) (HCLC, does med-mal defendant forfeit right to seek sanctions by failing to pursue by interlocutory appeal challenge to expert report where objection was overruled by the trial court?)
MIGUEL HERNANDEZ, M.D. v. JULIOUS EBROM AND RICHARD HUNNICUTT; from Hidalgo County;13th district (13-06-00053 CV, ___ SW3d ___, 02-08-07 Opinion of the court below) opposed motion for leave to file post-submission brief granted
The Court reverses the court of appeals' judgment and remands the case to that court.Justice Johnson delivered the opinion of the Court, in which Justice Hecht, Justice Wainwright, Justice Brister, Justice Green, and Justice Willett joined. [pdf] Chief Justice Jefferson delivered a dissenting opinion, in which Justice O'Neill and Justice Medina joined. [pdf] View Electronic Briefs in Tex. 2009 No. 07-0240 MIGUEL HERNANDEZ, M.D. v. EBROM
A defendant in a health care liability claim may appeal from the interlocutory order denying its objection to the plaintiff’s expert report. The statutes authorizing the defendant’s objection and appeal do not impose consequences if an interlocutory appeal is not pursued. In this case, we consider whether a defendant health care provider’s failure to challenge the adequacy of an expert report by interlocutory appeal precludes a challenge of the report by appeal from a final judgment when the plaintiff later nonsuits before trial. The court of appeals held it does; we hold it does not. We reverse and remand to the court of appeals.

JURISPRUDENTIAL CURIO: FIRST THE AGENCY SUES, THEN IT CLAIMS THE COURT DOES NOT (YET?) HAVE JURISDICTION

ERS of Texas v. Duenez (Tex. 2009),
No. 07-0410 (Tex. Jul 3, 2009)(Brister) (administrative law, agency exclusive jurisdiction doctrine) EMPLOYEES RETIREMENT SYSTEM OF TEXAS v. XAVIER DUENEZ AND IRENE DUENEZ; from Calhoun County; 13th district (13-05-00729 CV, ___ SW3d ___, 04-05-07 Opinion below) Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court dismisses the petition for want of jurisdiction. Justice Brister delivered the opinion of the Court, in which Chief Justice Jefferson, Justice O'Neill, Justice Medina, Justice Green, and Justice Willett joined. [pdf] Justice Hecht delivered a dissenting opinion. [pdf] Justice Wainwright delivered a dissenting opinion, in which Justice Johnson joined. [pdf] View Electronic Briefs in Tex. 2009 No. 07-410 EMPLOYEES RETIREMENT SYSTEM OF TEXAS v. DUENEZ
Construing the Act as a whole, we conclude that the court of appeals’ opinion rejecting ERS’s claim of exclusive jurisdiction here does not conflict with this Court’s opinion in Duenez I affirming ERS’s exclusive jurisdiction of questions relating to payment of benefits. Accordingly, without argument, we dismiss the petition for want of jurisdiction.

A MAJORITY OF THE SUPREMES DENIES MANDAMUS RELIEF IN DISPUTE OVER LEGAL CAPACITY ISSUE WITH RESPECT TO ARBITRATION AGREEMENT. NO LESS THAN FOUR (4) SEPARATE OPINIONS ARE HANDED DOWN.

In re Morgan Stanley & Co, Inc. (Tex. 2009),
No. 07-0665 (Tex. Jul. 3, 2009)(Medina) (arbitration vs. litigation: legal capacity of party to arbitration agreement, who decides the issue?)
IN RE MORGAN STANLEY & CO. INC., SUCCESSOR TO MORGAN STANLEY DW, INC.; from Dallas County; 5th district (05-07-00590-CV, ___ SW3d ___, 07-17-07 Opinion by the Dallas CoA)
The petition for writ of mandamus is denied.
Justice Medina delivered the opinion of the Court [pdf], in which Chief Justice Jefferson, Justice Wainwright, Justice Green, Justice Johnson, and Justice Willett joined.
Justice Brister delivered a concurring opinion. [pdf]
Justice Willett delivered a concurring opinion. [pdf]
Justice Hecht delivered a dissenting opinion. [pdf](Justice O'Neill not sitting) Electronic Briefs in Tex. 2009 No. 07-0665 IN RE MORGAN STANLEY & CO. INC., SUCCESSOR TO MORGAN STANLEY DW INC.
In this original mandamus proceeding, the relator seeks to compel arbitration in accordance with its agreement in the underlying case. The other putative party to the agreement resists arbitration on the ground that she lacked the mental capacity to assent to the contract. The question here is whether the court or the arbitrator should decide this issue of capacity. The trial court concluded that it was the proper forum. We agree and, accordingly, deny the petition for writ of mandamus.
We agree that Prima Paint reserves to the court issues like the one here, that the signor lacked the mental capacity to assent. Accordingly, the trial court did not abuse its discretion in declining to yield the question to the arbitrator. Relator’s petition for writ of mandamus is denied.

DEFAULT JUDGMENT IMPROPER WHERE COUNSEL'S NO-SHOW FOR TRIAL WAS EXCUSABLE DUE TO CONFLICTING ENGAGEMENT IN ANOTHER COURT. NEW TRIAL WARRANTED UNDER CRADDOCK TEST

Dolgencorp of Texas, Inc. v. Lerma (Tex. 2009),
No. 08-0032 (Tex. 2009)(per curiam) (motion for new trial after post-answer default judgment due to counsel's scheduling conflict should have been granted; counsel was in trial in another county, and both counsel and the other court had numerous communications with the court that entered default judgment on no-show)
DOLGENCORP OF TEXAS, INC., D/B/A DOLLAR GENERAL STORE v. MARIA ISABEL LERMA, INDIVIDUALLY, ET AL.; from Cameron County; 13th district (13-03-00314-CV, 241 SW3d 584,08-23-07 Opinion by the Thirteenth Court of Appeals below) 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 [pdf] Electronic Briefs in Tex. 2009 No. 08-0032 DOLLAR GENERAL STORE v. LERMA
This appeal arises from a post-answer default judgment entered against Dolgencorp of Texas, Inc., d/b/a Dollar General Store (“Dollar General”) when its counsel failed to appear for trial because he was in a preferential trial setting in another county. Because Dollar General established it was entitled to a new trial pursuant to the factors set out in Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124, 126 (Tex. 1939), we reverse and remand for a new trial. We reverse the judgment of the court of appeals. The case is remanded to the trial court for a new trial.

SUPREME COURT AGAIN STEPS IN TO ASSURE DEFENDANT IN UNSUCCESSFUL MED-MAL SUIT GETS TO COLLECT ATTORNEY'S FEES AS SANCTION

Aviles, MD v. Aguirre (Tex. 2009),
No. 08-0240 (Tex. Jul 3, 2009)(per curiam) (HCLC sanctions under former med-mal law to be awarded on remand)
WILFREDO AVILES, M.D., AND WILFREDO AVILES, M.D., P.A. v. ALBERT AGUIRRE, ET AL.; from Hidalgo County; 13th district (13-06-00495-CV, ___ SW3d ___, 02-14-08 Opinion below)(Dissenting opinion by Rose Vela) 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 [pdf] Electronic Briefs 08-0240 WILFREDO AVILES, M.D. v. AGUIRRE
Like the current statute,1 former article 4590i required dismissal of a health-care claim if no timely expert report was served, and an award of attorney’s fees and costs “incurred” by the defendant. Act of May 5, 1995, 74th Leg., R.S., ch. 140, § 13.01, 1995 Tex. Gen. Laws 985, 986, repealed by Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.09, 2003 Tex. Gen. Laws 847, 884 (hereinafter “article 4590i”). In this case, the trial court granted dismissal but denied attorney’s fees because they had been incurred by the defendant’s insurer rather than the defendant himself. A divided court of appeals affirmed. ___ S.W.3d ___. As this reflects a basic misunderstanding of both the statute and liability insurance, we reverse.

EXCLUSIVE REMEDY? - NO (IT'S NOT A WORKER'S COMP CASE)

Dealers Electrical Supply Co. v. Scoggins Construction Co, Inc. (Tex. 2009),
No. 08-0272 (Jul. 3, 2009)(O'Neill) (construction law: bond requirement for workers and materialmen, supplies of materials, Texas Construction Trust Fund Act no exclusive remedy)
DEALERS ELECTRICAL SUPPLY CO. v. SCOGGINS CONSTRUCTION COMPANY, INC. ANDBILL R. SCOGGINS; from Hidalgo County;13th district (13-06-00368-CV, ___ SW3d ___, 12-20-07 Opinion by the Thirteenth Court of Appeals). The Court reverses the court of appeals' judgment and remands the case to that court. Justice O'Neill delivered the opinion of the Court. [pdf] Electronic Briefs in Tex. No. 08-0272 DEALERS ELECTRICAL SUPPLY CO. v. SCOGGINS CONSTRUCTION CO., INC.
Chapter 2253 of the Texas Government Code, historically called the McGregor Act, requires a prime contractor on a public-work contract to execute a payment bond to protect laborers and materialmen who work on or supply materials for the project. See Tex. Gov’t Code § 2253.021(a)(2). In this case, an electrical subcontractor on a bonded public-work project walked off the job, leaving his supplier of electrical parts unpaid. The supplier missed the McGregor Act deadline to pursue a claim on the bond, and filed this suit against the prime contractor for violation of the Texas Construction Trust Fund Act, Tex. Prop. Code §§ 162.001(a), 162.031(a), and breach of a separate Joint Check Agreement designed to ensure payment for materials supplied to the subcontractor. We must decide whether the McGregor Act provides the supplier’s exclusive remedy. We hold that it does not. Accordingly, we reverse the court of appeals’ judgment and remand the case for the court to consider the remaining issues it did not address.

JUDICIAL ESTOPPEL BASED ON NONDISCLOSURE IN BANKRUPTCY COURT HELD NOT TO APPLY

Ferguson v. Building Materials Corp. of America (Tex. 2009),
No. 08-0589 (Tex. Jul. 3, 2009)(per curiam) (judicial estoppel based on bankruptcy proceeding does not apply here) JASON FERGUSON AND BOBBIE FERGUSON v. BUILDING MATERIALS CORPORATION OF AMERICA, CPC LOGISTICS, INC., AND ROBERT JAMES MADDOX; from Dallas County;8th district (08-07-00051-CV, 276 SW3d 45, 06-12-08 Opinion of the Eight Court of Appeals below) 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 [pdf] Electronic Briefs in Tex. 2009 No. 08-0589 FERGUSON v. BUILDING MATERIALS CORP. OF AM.
At issue in this appeal is whether the plaintiffs in a personal injury suit should be estopped from pursuing their claim because they initially omitted it as a listed asset in a pending bankruptcy. The court of appeals, in a divided opinion, concluded that the doctrine of judicial estoppel should apply and affirmed the trial court’s dismissal of the plaintiffs’ personal injury claim. 276 S.W.3d 45. The court of appeals reasoned that the doctrine applied because of the plaintiffs failure to add the personal injury claim as an asset in their bankruptcy proceeding before the personal-injury defendant pointed out the omission and moved for dismissal. Because we disagree that the doctrine is invoked under the circumstances of this case, we reverse and remand the personal injury claim to the trial court. We review a grant of summary judgment de novo. Tex. Mun. Power Agency v. Pub. Util. Comm’n of Tex., 253 S.W.3d 184, 192 (Tex. 2007). Because the Fergusons have taken neither a clearly inconsistent position nor obtained an unfair advantage, the court of appeals erred in affirming the dismissal of their personal injury claim under the doctrine of judicial estoppel. We accordingly grant the petition for review and, without hearing oral argument, reverse the court of appeals’ judgment and remand the case to the trial court for further proceedings. See Tex. R. App. P. 59.1.

ANOTHER NEW TRIAL GRANTED - ANOTHER MANDAMUS ISSUED TO GET THE TRIAL COURT TO JUSTIFY THAT ACT (and explain why judgment was not entered for the defense)

In Re E.I. DuPont de Nemours and Co. (Tex. 2009).,
No. 08-0625 (Tex. Jul. 3, 2009)(Johnson) (mandamus granted: trial court's grant of new trial following jury verdict requires specific explanation)
IN RE E.I. DU PONT DE NEMOURS AND COMPANY; from Jefferson County;9th district (09-08-00318-CV, ___ SW3d ___, 07-24-08 Opinion of the Ninth Court of Appeals) Pursuant to Texas Rule of Appellate Procedure 52.8(c), without hearing oral argument, the Court conditionally grants in part and denies in part the petition for writ of mandamus. Justice Johnson delivered the opinion of the Court, in which Justice Hecht, Justice Wainwright, Justice Brister, and Justice Willett joined. [pdf] Justice O'Neill delivered a dissenting opinion, in which Chief Justice Jefferson, Justice Medina, and Justice Green joined. [pdf] Electronic Briefs in Tex. 2009 No. 08-0625 IN RE E.I. DU PONT DE NEMOURS AND CO.
At issue in this mandamus proceeding is whether the trial court abused its discretion by disregarding the jury verdict and granting a new trial without giving its reasons for doing so. Based on In re Columbia Medical Center of Las Colinas, ___ S.W.3d ___ (Tex. 2009), we hold that it did and grant relief. Without hearing oral argument, we conditionally grant DuPont’s petition for writ of mandamus. See Tex. R. App. P. 52.8(c). The trial court is directed to specify the reasons for which it disregarded the jury verdict and ordered a new trial. We are confident the trial court will comply, and the writ will issue only if it fails to do so.

COURT-BLESSED DISCOVERY PRIOR TO RULING ON MOTION TO FORCE ARBITRATION PROMPTS HIGH COURT TO INTERVENE

In Re Houston Pipeline Co., L.P. (Tex. 2009),
No. 08-0800 (Tex. 2009)(per curiam) (discovery orders and motion to compel arbitration) (trial court ordered to rule on motion to compel arbitration, and to lift discovery orders).
IN RE HOUSTON PIPE LINE COMPANY, L.P., ET AL.; from Victoria County;13th district (13-07-00299-CV & 13-07-00362-CV, 269 SW3d 90,08-26-08 Opinion of the Thirteenth Court of Appeals)stay order issued October 17, 2008, 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 [pdf] Electronic Briefs in Tex. 2009 No. 08-0800 IN RE HOUSTON PIPE LINE CO., L.P. D/B/A HOUSTON PIPE LINE CO.
When deciding a motion to compel arbitration under the Federal Arbitration Act, a Texas trial court applies Texas procedure, which permits discovery to be taken when it is needed before the arbitration or to permit the arbitration to be conducted in an orderly manner. Tex. Civ. Prac. & Rem. Code § 171.086 (a)(4),(6); see also Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266, 268 (Tex. 1992). At issue in this proceeding is whether the trial court abused its discretion by permitting discovery on damage calculations and other potential defendants, instead of deciding the motion to compel arbitration. For the reasons below, we conclude the trial court should not have ordered pre-arbitration discovery, but rather should have decided the motion to compel arbitration. Because the discovery ordered here is overbroad and beyond the issues raised in the motion to compel, we conclude that the trial court abused its discretion by ordering this discovery rather than ruling on the legal issues raised by the motion to compel. Accordingly, without hearing oral argument, we conditionally grant the writ and direct the trial court to vacate the discovery order and to rule on the motion to compel arbitration. Tex. R. App. P. 52.8(c). We are confident the trial court will comply, and our writ will issue only if it does not.

Mandamus Abatement Ping-Pong Skipped

TEXAS SUPREME COURT DISPENSES WITH ABATEMENT CONVENTION AND DECIDES MERITS

Abating the Mandamus Proceeding for reconsideration of the challenged ruling by different trial court judge?
But which trial court judge?

Mandamus is supposed to be directed to the judge that signed the order complained of. But what if no one judge stays with the case through its life and different judges will preside over different hearings? Supremes acknowledge problems created by San Antonio courts' rotating docket system and dispense with abatement procedure.

In Re Schmitz (Tex. 2009)
No. 07-0581 (Tex. May 22, 2009)(Brister) (factors considered in determining whether mandamus relief should be granted, shareholder derivative suit, sufficiency of pre-suit demand letter, notice)

FROM THE OPINION: As an initial matter, we must decide whether this case should be abated for reconsideration by a successor judge. The motion to dismiss here concerns a suit filed in the 288th District Court in Bexar County. After oral arguments in this Court, Judge Sol Casseb III replaced Judge Lori Massey as judge of that court. Normally, this would require abatement for reconsideration, as “[m]andamus will not issue against a new judge for what a former one did.”[4] But Judge Massey never heard the relators’ motion.

Under Bexar County’s central docket system, pretrial motions are generally heard by a presiding judge — one of the county’s 13 civil district judges who rotate monthly in that position.[5] The motion here was actually heard and denied by Judge Gloria Saldaña, who remains in office. The question is whether to abate this case for reconsideration when the judge who ceased to hold office never ruled on the motion, and the judge who did rule on it is still in office.

We hold that abatement is not required in these circumstances.

The proper respondent in a mandamus action is “the person against whom relief is sought.”[6] For judicial orders, that should generally be the judge who made the ruling. For example, in Remington Arms Co., Inc. v. Caldwell, we held the proper respondent in a challenge to a discovery sanction was the assigned judge who issued it rather than the presiding judge of the court in which the case was filed.[7]

But the courts of appeals have split on this issue. Some have held that the respondent in a mandamus proceeding should be the presiding judge rather than the judge who signed the challenged order.[8] Others have held the opposite — that the respondent should be the judge who signed the order rather than the presiding judge.[9] One has simply addressed the writ to both.[10] The only reason stated in any of these cases for naming a judge other than the one who signed the order is that the presiding judge alone has authority to sit in the case in the future.[11] But it is never entirely predictable who will preside over a case when it returns to a trial court, as Texas law allows judges to sit for one another whenever they choose.[12] This is especially true in counties with a central docket like Bexar County, as the presiding judge hearing pretrial matters changes monthly.

Generally, of course, the respondent is not critical in mandamus proceedings, as only the real party in interest actually appears, argues, and is affected by the outcome. Indeed, on at least two occasions we have changed the respondent on our own motion in a final opinion conditionally granting the writ.[13]

Of course, the writ must be directed to someone, but in the final analysis any judge sitting in the case after mandamus relief is granted would be compelled to obey it.[14] Accordingly, we adhere to the more practical rule treating the judge who signed the order as the respondent. As the judge who signed the order here has not left office, the abatement rule does not apply.

TERMS: PETITION FOR WRIT OF MANDAMUS, RESPONDENT IN MANDAMUS PROCEEDING, REAL PARTY IN INTEREST, ABUSE OF DISCRETION, ADEQUACY OF APPELLATE REMEDY, ABATEMENT OF MANDAMUS PROCEEDING PENDING IN COURT OF APPEALS, ROTATING DOCKET SYSTEM, JUDGES EXCHANGING BENCHES, SITTING FOR EACH OTHER

Mandamus review of order compelling arbitration

Texas Supreme Court finds that mandamus review is not available to vacate order compelling arbitration (this time)
.... and grants mandamus relief.

In the words of Justice Brister:

"We granted oral argument to address more specifically when mandamus relief is available in connection with orders compelling arbitration. Finding it is unavailable here, we conditionally grant the writ." [against the court of appeals, which opined otherwise]

Party opposing arbitration may get its day in (appeals) court later:

Arbitration-friendly Supreme Court finds that appeal from final judgment (presumably from order confirming arbitration award) is adequate remedy, notwithstanding delay and additional costs, where trial court stayed litigation by interlocutory order pending arbitration, rather than dismissing the action with a final appealable order prior to arbitration. Court holds that immediate mandamus relief may be appropriate in another case. (Perhaps in the next Perry Homes case?)

In Re Gulf Exploration, No 07-0055 (Tex. Apr. 17, 2009)
(arbitration mandamus, mandamus against order compelling arbitration as opposed to order denying arbitration) IN RE GULF EXPLORATION, LLC, ET AL.; from Midland County; 11th district (11-06-00244-CV, 211 SW3d 828, 11-30-06)
The Court conditionally grants the petition for writ of mandamus.
Justice Scott Brister delivered the opinion of the Court.

RELATED CONCEPTS: arbitration mandamus vs. interlocutory appeal of order compelling arbitration, order denying arbitration; stay vs. dismissal of suit when arbitration is compelled; abatement pending arbitration. Perry Homes v. Cull 258 SW3d 580 (Tex. 2008)(denial of right to arbitrate based on waiver finding)

Contractual Jury Waiver Enforced by Mandamus

In Re Bank of America, N.A. (Tex. 2009)
No. 07-0901 (Tex. Feb. 27, 2009) (per curiam mandamus) (contractual jury waiver enforced by mandamus in analogy to arbitration clauses, conspicuousness of waiver, knowing and voluntary waiver)

OPINION EXCERPTS:

In this contract dispute, we decide whether our holding in In re Prudential—which held that a contractual waiver of a jury trial is enforceable—creates a presumption against waiver that places the burden on the party seeking enforcement to prove that the opposing party knowingly and voluntarily agreed to waive its constitutional right to a jury trial. See In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 30–33 (Tex. 2004).

On interlocutory appeal, the court of appeals applied such a presumption and reversed the trial court’s enforcement order. 232 S.W.3d at 151–52. Today, we conditionally grant Bank of America’s petition for writ of mandamus to clarify that Prudential does not impose a presumption against a contractual jury waiver.

* * *

In Prudential, we agreed with the United States Supreme Court that “arbitration and forum-selection clauses should be enforced, even if they are part of an agreement alleged to have been fraudulently induced, as long as the specific clauses were not themselves the product of fraud or coercion.” 148 S.W.3d at 134–35 (citing Scherk v. Alberto-Culver Co., 417 U.S. 506 (1974)).

Since Prudential indicates that the same dispute resolution rule expressed by the United States Supreme Court in Scherk should apply to contractual jury-waiver provisions, the court of appeals’ analysis errs by distinguishing jury waivers from arbitration clauses, thereby imposing a stringent initial presumption against jury waivers. 232 S.W.3d at 151–52. Statutes compel arbitration if an arbitration agreement exists, see Tex. Civ. Prac. Rem. Code Sec.171.021(a) (Texas General Arbitration Act), and more importantly, “Texas law has historically favored agreements to resolve such disputes by arbitration.” In re Poly-America, L.P., 262 S.W.3d 337, 348 (Tex. 2008); see also In re. D. Wilson Constr. Co., 196 S.W.3d 774, 782–83 (Tex. 2006) (recognizing presumption favoring arbitration clauses).

We see no reason why there should be a different rule for contractual jury waivers.

We hold that Prudential does not impose a presumption against jury waivers that places the burden on Bank of America to prove that the waiver was executed knowingly and voluntarily. Therefore, we conditionally grant the petition for writ of mandamus and direct the court of appeals to vacate and withdraw the opinion and judgment of May 3, 2007, and to reinstate the trial court order enforcing the parties’ jury waiver. Tex. R. App. P. 52.8(c); see also Prudential, 148 S.W.3d at 139–140 (holding that mandamus is appropriate remedy to enforce contractual jury waivers). We are confident the court of appeals will comply, and the writ will issue only if it fails to do so.

IN RE BANK OF AMERICA, N.A.; from Tarrant County; 2nd district (02-05-00397-CV, 232 SW3d 145, 05-03-07) 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(Justice Johnson not sitting)

Void TRO against OAG set aside by mandamus

Texas Supreme Court Court vacates trial court orders against Office of Attorney General in Dallas child support collection dispute; says the orders were procedurally defective.

In re OAG,
No. 08-0165 (Tex. 2008) (per curiam) (temporary restraining order TRO declared void and set aside by mandamus)
IN RE OFFICE OF THE ATTORNEY GENERAL; from Dallas County; 5th district (05-08-00208-CV, ___
SW3d ___, 02-28-08)
stay order issued February 29, 2008, 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 [ pdf ]

Texas Rules of Civil Procedure 680 and 684 require a trial court issuing a temporary restraining order to: (1) state why the order was granted without notice if it is granted ex parte, Tex. R. Civ. P. 680; (2) state the reasons for the issuance of the order by defining the injury and describing why it is irreparable, id.; (3) state the date the order expires and set a hearing on a temporary injunction, id.; and (4) set a bond, Tex. R. Civ. P. 684.

Orders that fail to fulfill these requirements are void. Interfirst Bank San Felipe, N.A. v. Paz Constr. Co., 715 S.W.2d 640, 641 (Tex. 1986); Lancaster v. Lancaster, 291 S.W.2d 303, 308 (Tex. 1956).

The temporary restraining order and amended orders issued by the trial court violate these rules. The original and first amended orders were granted ex parte but fail to explain why they were granted without notice, see Tex. R. Civ. P. 680; they do not define the injury they were designed to prevent or explain why such injury would be irreparable, see id.; and they were issued without meeting the bond requirement, see Tex. R. Civ. P. 684.

The second amended order purports to carry forth the original temporary restraining order as a temporary injunction, but the trial court issued it without a hearing; thus, it is not properly considered a temporary injunction but, rather, a continuation of the temporary restraining order. See Tex. R. Civ. P. 680; Del Valle Indep. Sch. Dist. v. Lopez, 845 S.W.2d 808, 809 (Tex. 1992). This second amended order, although it does set a bond, again fails to explain the reason for granting the order without notice or to define the injury to be suffered. See Tex. R. Civ. P. 680, 684.

Because temporary restraining orders are not appealable, the Attorney General has no remedy by appeal. In re Tex. Natural Res. Conservation Comm’n, 85 S.W.3d 201, 205 (Tex. 2002); In re Newton, 146 S.W.3d 648, 652–53 (Tex. 2004). Furthermore, the Attorney General has presented evidence that Texas could lose federal funding if he is forced to comply with the orders pending the outcome of proceedings to amend the underlying child-support orders. See 42 U.S.C. § 602 (2000).

Given the unavailability of appeal and the gravity of interests at issue in this case, we accordingly—without hearing oral argument, pursuant to Texas Rule of Appellate Procedure 52.8(c)—conditionally grant relief and direct the court to withdraw all three of its temporary orders. We are confident that the trial court will comply, and the writ will issue only if the trial court fails to do so.

Links: Other OAG child support enforcement cases | Family law decisions of the Texas Supreme Court |
Other Mandamus Opinions of the Texas Supreme Court |

GRANDPARENT RIGHTS UNDER SCRUTINY: Visitation Order Set Aside by Supreme Court Mandamus

Texas High Court says natural mother was improperly denied opportunity to contest temporary visitation rights for paternal grandparents in an evidentiary hearing. Court grants mandamus relief to throw out interim SAPCR order, citing earlier cases affirming principle that the rights of natural parents trump those of nonparents unless grave circumstances rebut the presumption favoring parents.

In Re Chambless,
No. 07-0767 (Tex. 2008) (per curiam) (orig. proc.) (family law, grandparent visitation suit)(mandamus granted) (parental presumption, preference for natural parent as child's custodian)
IN RE STACY D. CHAMBLESS; from Tarrant County; 2nd district (02-07-00291-CV, ___ SW3d ___, 08-23-07) stay order issued October 24, 2007, 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.

“Possession of or access to a child by a grandparent is governed by the standards established by Chapter 153 [of the Texas Family Code].” Tex. Fam. Code § 102.004(c). A grandparent seeking court-ordered visitation must “overcome[] the presumption that a parent acts in the best interest of the . . . child by proving by a preponderance of the evidence that denial of possession of or access . . . would significantly impair the child’s physical health or emotional well-being.” Id. § 153.433(2).

A trial court abuses its discretion when it grants access to a grandparent who has not met this standard. In re Derzapf, 219 S.W.3d 327, 333 (Tex. 2007) (per curiam).

Stacy complains that the trial court abused its discretion in awarding the paternal grandparents temporary visitation without affording her an opportunity to be heard. She further argues this temporary visitation order violates her fundamental right as a parent. Parents enjoy a fundamental right to make decisions concerning “the care, custody, and control of their children.” Troxel v. Granville, 530 U.S. 57, 65 (2000) (plurality opinion). This “natural right which exists between parents and their children is one of constitutional dimensions,” Sw. Bell Tel. Co. v. Garza, 164 S.W.3d 607, 622 (Tex. 2004) (quoting Wiley v. Spratlan, 543 S.W.2d 349, 352 (Tex. 1976)), and is “far more precious than any property right,” In the Interest of M.S., 115 S.W.3d 534, 547 (Tex. 2003) (quoting Santosky v. Kramer, 455 U.S. 745, 758-59 (1982)).

“So long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family.” In re Mays-Hooper, 189 S.W.3d 777, 778 (Tex. 2006) (per curiam) (quoting Troxel, 530 U.S. at 68). The State “[cannot] infringe on the fundamental right of parents to make child rearing decisions simply because a state judge believes a better decision could be made.” Derzapf, 219 S.W.3d at 333 (quoting Troxel, 530 U.S. at 68).Here, the paternal grandparents concede Stacy is a fit parent and acknowledge Stacy would likely talk to J.A.C. about his father. Stacy also argues that if given the opportunity, she would present evidence that denying the grandparents visitation is in her child’s best interest. A parent must be given a meaningful opportunity to be heard before a trial court awards temporary grandparental visitation. Cf. In the Interest of J.W.T., 872 S.W.2d 189, 198 (Tex. 1994) (Hecht, J., concurring) (noting “that in a free society the State cannot deny a [parent] all right to his child without due process”); see also Stanley v. Illinois, 405 U.S. 645, 651 (1972) (finding that a parent’s right to “the companionship, care, custody, and management of his or her children” is an important constitutional interest that “undeniably warrants deference and, absent a powerful countervailing interest, protection”). Thus, the trial court abused its discretion in awarding the paternal grandparents temporary visitation with J.A.C. without affording Stacy a meaningful opportunity to be heard.

Without hearing oral argument, we conditionally grant mandamus relief and direct the trial court to vacate its August 14, 2007 temporary order granting grandparental visitation. Tex. R. App. P. 52.8(c). We are confident the trial court will promptly comply; our writ will issue only if it does not.

Links: Grandparent and nonparent child custody suits and intervention in Texas Other Family Law Rulings from the Texas Supreme Court

For grandparents rights cases in the Texas Courts of Appeals (most of which not reviewed by the state Supreme Court, see Texas Grandparents Rights TX (Case Law Blog of Grandparent custody, access, visitation)

2008-06-06 Texas Supreme Court Decisions with Links to Opinions

Court issues two mandamus decisions involving sufficiency of expert reports in health care liability suits and one eminent domain ruling involving the University of Houston. Supreme Court also denies numerous petitions for review with today's orders.

FKM Partnership, Ltd. v. Bd. of Regents of Univ. of Houston System, No. 05-0661 (Tex. Jun 6, 2008) (Phil Johnson) (eminent domain, condemnation)
FKM PARTNERSHIP, LTD., A TEXAS LIMITED PARTNERSHIP v. BOARD OF REGENTS OF THE UNIVERSITY OF HOUSTON SYSTEM; from Harris County; 14th district (14-03-00392-CV, 178 S.W.3d 1, 04-14-05) 2 petitions The Court affirms the court of appeals' judgment and remands the case to the trial court.Justice Johnson delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Hecht, Justice O'Neill, Justice Wainwright, Justice Brister, Justice Medina, and Justice Green joined.
Justice Willett delivered an opinion concurring in part and dissenting in part.

In Re Roberts, No. 05-0362 (Tex. Jun 6, 2008)(per curiam) (med-mal, grant of 30-day extension to cure deficiencies in expert report was proper, mandamus granted against court of appeals which ruled otherwise)
IN RE SUSAN ROBERTS AND JOHN R. ROBERTS, JR., INDIVIDUALLY AND AS NEXT FRIENDS OF THEIR MINOR CHILDREN JAMIE ROBERTS, JOSHUA ROBERTS, AND HALEY ROBERTS; from Potter County; 7th district (07-04-00363-CV, ___ S.W.3d ___, 4-27-05) relators' motion for emergency relief deniedPursuant 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 (Justice Johnson not sitting)

In re Methodist Healthcare System of San Antonio, Ltd, No. 05-0575 (Tex. Jun 6, 2008)(per curiam)(HCLC, sufficiency of expert report, in medical malpractice suit)(court below instructed to apply new mandamus standard)
IN RE METHODIST HEALTHCARE SYSTEM OF SAN ANTONIO, LTD., D/B/A METROPOLITAN METHODIST HOSPITAL; from Bexar County; 4th district (04-05-00305-CV, ___ S.W.3d ___, 05-25-05) stay order issued September 16, 2005, liftedmotion to consolidate 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