In re Office of the Attorney General, No. 08‑0165 (per curiam)

Decided: June 27, 2008

Earlier coverage: “Mandamus About Texas’s Child Support System” (3-3-2008) and “More Action on the Pending Child Support Mandamus” (3-21-2008)

The Texas Supreme Court granted mandamus relief against certain “temporary” orders from a Dallas County district court about the Office of the Attorney General’s child support collection operations.
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I saved back one case from Friday’s order list for a separate post.

• Evanston Ins. Co. v. ATOFINA Petrochemicals, Inc., No. 03‑0647.

I wrote about this case in February, when the Court — on rehearing — changed its judgment from 9-0 in favor of the insurer to a new judgment that largely favored the insured.

After that decision, both sides were dissatisfied and filed motions for rehearing, and Friday the Court issued a revised opinion while granting one of those motions for rehearing. (( I haven’t done a line-by-line comparison, but the email sent by Court’s public-information officer identified only two minor changes made by Friday’s substituted majority opinion. According to that email, the reissued opinion changes the following on page 2:

We affirm the judgment of the court of appeals to the extent that it resolves the coverage dispute in favor of the additional insured, and to the extent that it binds the insurer to the amount recited in the settlement agreement, but we reverse the court of appeals’ judgment regarding damages and attorney’s fees under article 21.55 and render judgment that because the additional insured is not entitled to recovery of such damages and fees.

And it also changes the disposition in the last paragraph of the opinion:

We reverse the court of appeals’ judgment permitting ATOFINA to recover attorney’s fees and damages under article 21.55 of the Texas Insurance Code and render judgment that because ATOFINA is entitled to no such damages or fees. We remand the case to the trial court for further proceedings on ATOFINA’s other claims for attorney’s f

)) This is the revised majority opinion.

Here is the procedural point that warrants a separate post: This was a motion for rehearing filed after the Court’s grant of a first motion for rehearing — making this a second motion for rehearing.

Why is that significant? Texas Rule of Appellate Procedure 64 governs motions for rehearing in the Texas Supreme Court. Unlike the rule applicable in lower courts, this one has a provision that says: “64.4 Second Motion. The Court will not consider a second motion for rehearing.”

I have always found that rule too simple for its own good because it overlooks the Court’s two-step review process, in which the Court’s decision whether to review a case is often made months or even years apart from its decision how to resolve a case. While it makes sense to prevent parties from piling on additional motions for rehearing in seriatim after a merits decision — the process must at some point end — it would make less sense to prevent a party from seeking rehearing on the merits merely because the Court also had to be prodded to take the case through a motion for rehearing at the petition stage.

Out of an abundance of caution, I have always read the rule to prevent such a motion, but I would understand if the Court were (either through decision or rule-making) to clarify that the bar on “second motions for rehearing” applies separately to “motions for rehearing of a petition” and to “motion for rehearing of a cause.” Such a distinction, while somewhat metaphysical, would make good practical sense.

But the procedural posture of Evanston v. ATOFINA does not fit even that more liberal reading of the rule. Here, the Court issued a decision on the merits. One party was dissatisfied and filed a motion for rehearing, which was granted. Then the Court issued a second merits decision. And the parties filed yet more motions for rehearing. One of which was … granted. (( At first, I thought the Court might have denied both motions or might even have granted the motion by Evanston, which itself had not previously filed any motion for rehearing. But the Court’s order list says that ATOFINA’s motion was granted. The order list does not suggest that the Court considered ATOFINA’s motion to be untimely or barred by Rule 64.4. ))

As I said, this is just a procedural observation. But it raises an important question — when can parties file a motion for rehearing under Rule 64.4 and when are they barred doing so?

Some clarification of Rule 64.4 might be on the agenda for the Court’s next rules attorney.

The First Court of Appeals has ordered expedited briefing in the Medina v. Benkiser litigation challenging how the Texas Republican Party will be conducting its state convention.

According to the docket sheet, the brief of the voter bringing the challenge is due at 9:00 a.m. and the party has until 5:00 p.m. to file its response.

The convention is scheduled to begin today, so any further appeals will be equally expedited.

Here is the Chronicle’s background on the case:

A group of Republicans including supporters of Paul’s presidential campaign and others sued the party last week on grounds that it fails to follow state law that requires procedures to make the convention’s actions official. The group essentially alleges that party leaders ignore the rules to retain power and limit dissent — a charge the party denies.

After County Court-at-Law Judge Roberta Lloyd said Monday she had no jurisdiction to try the lawsuit, the group appealed to the all-Republican, Houston-based First Court of Appeals, which refused Wednesday to intervene on an emergency basis. That means the convention will kick off at 1 p.m. free of any court orders.

The dissenters seem to have been having all the fun.

A few weeks ago, Justice Wainwright began a dissenting opinion with an extended quotation from the Disney theme “A Whole New World” to illustrate how far afield he thought the majority was taking Texas law.

Now, Justice Willett has taken the pop culture references into the internet age. In writing his partial dissent in FKM Partnership, Ltd. v. Board of Regents of the University of Houston System, No. 05-0661, he not only compared the majority’s reasoning about statutory construction to “a classic Inspector Clouseau moment,” but even provided a YouTube link for those who wanted to follow along.

Here’s where it takes you:

Last Friday was interesting for the Texas Supreme Court’s “submarine docket” — the set of cases that the Court resolves without oral argument and without a former prior order “submitting” the case for decision, as might happen in a court without discretionary review.

When a petition lingers, that’s valuable information

Some have complained that they need the Texas Supreme Court to create a formal “submission on written briefs” process so they can tell what issues might be of interest to the Court. But some clues are already there in how the Court handles its petitions. Cases that linger on the docket are likely to get more attention from the Court. And when the Court’s docket starts to accumulate a group of petitions that raise similar issues, it’s a safe bet that some part of the Court is thinking seriously about them.

This week, the Court answered an open question about using mandamus to review the 30-day extension of time on expert reports that trial courts can offer medical-malpractice plaintiffs. The Court resolved that question in In re Roberts (discussed here). This was a “submarine” decision — no formal submission was made, and the case was decided without oral argument after having been pending on the Court’s docket for some time. This one, in fact, was pending for about two and a half years after full briefing was completed. There should have been little doubt that this issued was on the Court’s mind.

And it was not the only petition that raised this question. In Friday’s order list, the Texas Supreme Court also resolved a few other long-pending cases that raised the same question. One of them — like Roberts itself — was among the Court’s very longest-pending fully briefed cases: In re Benavides, No. 05-0784. In Benavides, like Roberts, the defendant sought to use mandamus to review a trial court’s decision to grant a 30-day extension. Consistent with its decision in Roberts, the Court simply denied review in this case. The Court also denied review today in In re Temple, No. 05-0817, and In re Zimmerman, No. 05-0826, two cases out of the Sixth Court raising the same question. Both of those petitions were pending for more than two years after the petition briefing was complete but before any request for full merits briefing. (( The Court sometimes lets cases linger at that stage so that it can resolve some legal issue in the case through another pending case. That way, if the Court decides it does want to see merits briefing, the parties can write briefs more helpful to the Court that address the Court’s new guidance. Cases lingering at the petition stage can be an interesting indicator of what the Court is thinking about in other cases. ))

The odds are better, but they’re not perfect

Friday’s order list resolved six of the Court’s very longest-pending cases — five of which dealt with the same question about medical-malpractice expert witnesses.

But the very longest-pending case did not result in a merits decision at all.

Admiral Insurance Co. v. Westchester Fire Insurance Co, No. 05-0028, a case between two insurance companies raising questions under the Stowers doctrine, was (by my count) the longest pending petition that had not yet been granted, at about 2 years and 10 months since the Respondent’s Brief on the Merits. In Friday’s order list, the Texas Supreme Court denied review without comment, letting the case return for trial consistent with the court of appeals’s judgment.

Providence Health Center v. Dowell, No. 05-0386,
<br/ >consolidated with,
Pettit v. Dowell, No. 05-0788

Decided: May 23, 2008

The Court split 5-1-3 in this tort-causation case.

Dowell visited a health center after having ingested some pills and attempting to slit his wrist. After a brief consultation that included him signing a “no suicide contract” and agreeing to show up the next Tuesday, the health center released him. About 33 hours later, Dowell committed suicide. A jury found that the medical providers’ conduct had been a contributing cause.

Justice Hecht delivered the opinion of the Court, in which Justice Brister, Justice Green, Justice Johnson, and Justice Willett joined. The Court held that there was “no evidence” of causation, in part relying on the 33 hours that elapsed before Dowell’s suicide. The Court thus reversed and rendered a take-nothing judgment. Four Justices disagreed with the Court’s holding. Justice Wainwright concurred in part and dissented in part. He would have held that there was some evidence to support the jury’s verdict, but he would have reversed and remanded for a new trial because of a jury charge error. Justice O’Neill’s dissent (joined by the Chief Justice and Justice Medina) would also have found that this evidence met the no-evidence standard and would have affirmed the court of appeals’s judgment.
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Progressive County Mutual Insurance Co. v. Kelley, No. 08-0073

Briefing Requested: May 30, 2008

In a case about automotive insurance, this is not the usual way for the fact section to begin:

“While riding her horse…”

Regan Kelley, while riding her horse, was struck by a motorist and seriously injured. She filed a claim under her own insurance policy’s provision for underinsured motorists. Her insurer paid a single policy limit (which was approximately $500,000).

It turns out, however, the the insurer had issued two separate documents of insurance to the Kelley family — splitting the automobile insurance for the family’s five cars across those two documents. Kelley sued seeking coverage under that second document.

The insurer contends that its issuing two separate documents was merely for its own administrative convenience and that these documents actually embodied only policy. Kelley contends that the policies mean what they say and that, in any event, the insurer’s own internal guidelines recognize that these are distinct policies.

The Waco Court agreed with Kelley, holding that summary judgment should have been granted to Kelley that these were separate policies. The court of appeals also struck down a provision of those policies that might have prohibited “stacking” of this coverage as violating public policy.

The opinion was a memorandum opinion. Chief Justice Gray dissented without a separate opinion.

The Texas Supreme Court has now requested merits briefing in the case.

The Court has requested merits briefing in four cases:

• Progressive County Mut. Ins. Co. v. Kelley, No. 08-0073. This insurance case raises a couple of interesting contract questions and warrants its own post.

• Target Corp. v. MRO Southwest, Inc., No. 08-0105. In this rather tangled construction dispute, the court of appeals rejected Target’s attempt to enforce an indemnity provision and to thereby recover its attorney’s fees.

• In re Weeks Marine, Inc., No. 08-0107. This is another arbitration mandamus, although the underlying case does have the complication of determining whether a party is a “seaman” and thus excluded from the FAA. But… given that the relator is the company and not the employee, it looks like this petition concerns the one issue that the court of appeals left open for the trial court to decide — procedural unconscionability, that is, how the contract was procured, not necessarily its substantive terms.

  In the court of appeals, Weeks Marine contended that this “procedural unconscionability” attack was directed to the signing of the contract as a whole and thus was an issue for the arbitrator; the court of appeals held that the attack was directed at the unconscionability of how the arbitration provision was obtained and thus was an issue for the trial court.

  What’s a little odd is that both may be right — the contract is titled “Claim Arbitration Agreement”.

• Gulf Ins. Co. v. Hennings, No. 08-0202. See this earlier post.