FLDS Compound Child-Custody Cases

It’s apparently not too early to talk about an appeal. And, given the stakes involved for both sides of the litigation in this sort of preliminary ruling, I would expect one to come soon: (( One wonders if the appeal of this order will be “en masse rather than child-by-child.” It seems like the children or parents would have aligned enough interests on this preliminary legal issue to pursue a joint appeal, but then again, the whole point of the argument would be that each child’s (and parent’s) interests on the merits may diverge. ))

Parents have two opportunities for appeal, [Scott] McCown said. They can appeal the judge’s procedures or her ruling, he said.

It’s likely some attorneys will appeal Walther’s decision to allow the state to present its evidence en masse rather than child-by-child. However, the law sets a high bar for appeals; attorneys would have to show the judge abused her discretion, [Guy] Choate said.

The appellate court for the 51st District is the Third District Court of Appeals in Austin.

Source: Salt Lake Tribune

Craddick Running Unopposed

Echoing an argument made earlier this year challenging Wendy Davis’s eligibility to be on the ballot, a federal district court in Waco has ruled that Rep. Tom Craddick’s democratic opponent is ineligible to be on the ballot. The decision was made by Judge Walter S. Smith, Jr., Chief Judge of the Western District.

In this case, the argument is that Bill Dingus, who serves on the Midland City Council, should have resigned his seat before filing to run for state representative. It’s clear that he ultimately can’t hold both offices; what’s less clear is when he has to resign.

That question came up earlier this year in In re Cerda, No. 02-08-00018-CV, a mandamus action that very briefly (but prematurely) was in the Texas Supreme Court before being decided by the Fort Worth Court of Appeals. In Cerda, the court of appeals ultimately decided that the plaintiffs (a small group of Democratic primary voters) lacked standing to make that challenge, at least to the appearance of that candidate on the Democratic primary ballot. The parties to Cerda did not seek further review in the Texas Supreme Court.

If this new federal case makes its way to the Fifth Circuit, that issue of statutory interpretation may well come back to the Texas Supreme Court as a certified question.

Other articles: Houston Chronicle

Malpractice Suit Seeking Fee Disgorgement in a Patent Case

Take a picture: It’s a patent-related case not in the Eastern District of Texas.

Earlier this month, a suit was filed in Harris County against Howrey LLP and a former partner of the firm for legal malpractice. The allegation is that “a partner in Howrey’s Houston office, was [the plaintiffs’] lawyer in a variety of patent matters and that he brought a patent to them for potential purchase, demanded an ‘under the radar’ verbal deal for 50 percent of net profits to be derived from the patent and breached his fiduciary duty by ‘misrepresent[ing] the value of the patent.'”

“It’s improper for a lawyer to bring a prospect to a client and then ask for 50 percent,” says Steven M. Smoot, a Houston solo who represents Guardian and GMT in the suit.

Stephen H. Cagle, managing partner of Howrey’s Houston office, denies the allegations against the firm and Dowler. “I think they’re categorically false,” Cagle says.

Relying on the 1999 Texas Supreme Court decision Burrow v. Arce, 997 S.W.2d 227 (Tex. 1999), the plaintiffs seek disgorgement of $5 million in legal fees paid to the firm over a five-year period.

Source: Law.com

Op-Ed on Subrogation

Judy Kostura wrote an op-ed titled “Why You Should Always Read the Fine Print” that was published by the Statesman last Thursday.

As part of its argument, the piece summarizes the Court’s 2007 decision in Fortis Benefits v. Cantu, No. 05-0791: (( This link is to the original opinion. I understand that only minor changes were made in a November 2, 2007 corrected opinion. That latter one is not available on the Court’s site. ))

Vanessa Cantu … was rendered a quadriplegic in a collision and was able to secure a settlement from the insurance company of those responsible for her injuries. Her settlement didn’t compensate her fully for her terrible injury, but it helped. Cantu’s insurer, Fortis, sued her to recover the money it had paid under the policy. The case found its way to the Texas Supreme Court. The court sided with the insurance company and wrote an opinion that eviscerated the 92-year-old “made whole” doctrine in Texas law. Cantu was the first person hurt by this wrong-headed decision, but she won’t be the last. The Fortis v. Cantu case gives insurance companies a free rein to write deceptive and onerous health insurance policies, promising benefits on one page and taking them away in the fine print on another.

The piece argues for a legislative solution that would create a statutory “make whole” doctrine.

This Week’s Award for Candor

A lawsuit is pending in Texas state court about a Greyhound crash somewhere on the route between Montreal and New York City that resulted in five fatalities and a number of other injuries. Although the bus route was not so circuitous as to travel through Texas, Greyhound’s corporate headquarters is located in Texas.

On April 11th, the Texas Supreme Court denied mandamus relief to Greyhound that would have stopped the Texas suit. In re Greyhound Lines, No. 08-0179.

According to the Albany Times Union:

Edward Jazlowiecki, an attorney for 19 of the 28 plaintiffs, said the driver was distracted by a cell phone and a music player, according to his clients.

Jazlowiecki said the plaintiffs originally asked for $50 million in punitive damages and they are pleased the case will remain in Texas where juries typically award bigger settlements than in the Northeast.

“They wasted a lot of our time and money, so we may ask for more now,” Jazlowiecki said.

Candid? Definitely. Valid measure of damages? I’ll keep you posted on that. I bet there’s a big market for a cause of action that gets you money whenever you feel the other side has wasted your time.