In re Cahill, No. 08-0372

Mandamus Denied 05-19-2008

Today’s Corpus Christi Caller Times reports on a new election mandamus petition filed in the Texas Supreme Court last Friday by Vanessa Cahill against the chair of the Nueces County Republican Party. It seeks records from the county convention so that Cahill can challenge the delegate selection.

It turns out, however, that the Texas Supreme Court has already ruled on the case, denying the request without prejudice. That’s because the mandamus petition was filed initially in the Texas Supreme Court. This is the fourth time this election season (by my count) that the Court has denied an election-related mandamus under Texas Rule of Appellate Procedure 52.3(e), signaling to the parties that they should go first to the court of appeals. (( Rule 52.3(e) provides that, if a mandamus is one that a court of appeals can hear, then it “must be presented first to the court of appeals unless there is a compelling reason not to do so.” ))

In re Jason Loban, No. 08-0336.

Briefing Requested: May 16, 2008

The Texas Supreme Court has just requested full briefing in a case involving what procedural protections a pet owner has when a local animal-control official declares a pet to be dangerous.

The Legislature has created of a statutory right to appeal an adverse determination from a municipal court up to a county court. But other statutes seem to divest those courts (at least those in Tarrant County) from hearing the case.
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So begins today’s dissent by Justice Wainwright in In re McAllen Medical Center, Inc, No. 05-0892:

A whole new world

A new fantastic point of view

No one to tell us no

Or where to go

Or say we’re only dreaming . . .

It’s crystal clear

That now I’m in a whole new world with you.

— Brad Kane, A Whole New World, on Aladdin (Disney 1992).

But don’t get too excited. This “whole new world” is “[a] whole new world in mandamus practice” in which arguments about the litigants’ “costs and delay” now can satisfy Texas’s traditional standard that a relator must show that it lacks an adequate remedy by appeal.

Who should be reading this case carefully and thinking about how the more lenient standards for mandamus affect them? Anyone trying perhaps to get mandamus relief to order a trial court to enforce a forum-selection clause in a contract. Or trying to get mandamus relief against a trial court’s temporary conservatorship order. I’m sure there will be no shortage of other affected cases.

I’ll have a full summary in a later post.

City of Dallas v. Reed, No. 07-0469 (per curiam)
Decided: May 16, 2008

In this interlocutory appeal, the Texas Supreme Court rejected the argument that a two-inch difference in elevation between two lanes on a city road was a “special defect” that imposed a heightened duty on the city under the Texas Tort Claims Act. In a per curiam decision, the Court reversed and dismissed the action.
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Higgins v. Randall County Sheriff’s Office, No. 06-0917 (Higgins II)
Decided: May 16, 2008

Normally, appellate filing fees are a prerequisite to an appeal. An appellant can, however, avoid the fees by establishing indigence under Rule 20.1. What happens if an appellant files an affidavit of indigency that is plainly lacking as to some of the elements enumerated in the rule yet no one invokes the provisions in the rule permitting the affidavit to be “contested”?

A split Texas Supreme Court held that the court of appeals should not have dismissed a technically deficient affidavit in the absence of such a contest. Accordingly, it reversed the dismissal and remanded.

Interestingly, although this case was decided without oral argument under Rule 59.1 (a route that usually results in per curiam opinions), the Court actually split 5-3 on the merits. Justice O’Neill wrote for the majority; Justice Green wrote for the dissent. (Justice Johnson did not participate.)
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Merck & Co. v. Garza, No. 04-07-00234-CV, in the San Antonio Court of Appeals

Justice Marion wrote today’s opinion, joined by Justice Stone and Justice Speedlin. The judgment was a reversal and rendition of judgment for Merck, although on grounds that may not help Merck in any future cases. The Court decided that the plaintiffs had not introduced enough evidence to “exclude with reasonable certainty” the decedent’s preexisting heart condition as a cause of his blood clots. (( The opinion explains:

Although plaintiffs were not required to establish specific causation in terms of medical certainty, nor to conclusively exclude every other reasonable hypothesis, because Mr. Garza’s preexisting cardiovascular disease was another plausible cause of his death, the plaintiffs were required to offer evidence excluding that cause with reasonable certainty. See Merrell Dow, 953 S.W.2d at 720. We do not believe plaintiffs met their burden. Dr. Simonini’s causation opinion is based on the premise that, despite a recent scan that was only mildly abnormal, two clots formed simultaneously in two different arteries sometime after Mr. Garza began taking the Vioxx and such an occurrence was “rare.” However, no scientific evidence was offered to support Dr. Simonini’s opinion that the two clots were “rare” for someone with Mr. Garza’s risk factors. Also, Dr. Simonini provided no scientific connection between exposure to Vioxx for less than twenty-five days and the simultaneous formation of two clots. Even viewing all the evidence in the light most favorable to plaintiffs, we conclude the evidence is legally insufficient to support a finding that plaintiffs negated, with reasonable certainty, Mr. Garza’s preexisting heart condition as a plausible cause of his death. Therefore, the judgment should be reversed and a take-nothing judgment rendered in favor of Merck.

[emphasis added]
))

A little more information appears in “Texas Court Overturns Vioxx Ruling” from the New York Times.

.39 Acres, .748 Acres, and .5 Acres (With Improvements) in the J. Johnson Survey, Marion County, Texas, and a .22 Caliber Ruger Semi-Automatic Pistol v. The State of Texas, No. 08-0356

“… a .22 Caliber Ruger Semi-Automatic Pistol v. The State of Texas.” That’s much jucier material than the typical insurance case up at the Court.

This comes from a petition for review filed yesterday that, as you may have guessed, is a forfeiture case. The background is summarized by Justice Mosely:

Some kind of establishment generally known in the area as the “Dew Drop Inn” was located in Marion County, Texas. The evidence adduced at trial never fully developed the nature of any overt legal business activity which was represented to the public to be conducted on the premises, but it is apparent that it was a gathering place of sorts and that it seemed to have been attractive to people having criminal records. Suffice it to say that, judging from the criminal records of the patrons of the business and Doke’s renters of the place, the Dew Drop Inn was never intended to be a competitor of the Chuck E. Cheese family fun restaurants.

In re Nathan Macias, No. 08-0339

Nathan Macias’s bid to change out the trial judge who will hear his election challenge (described in this earlier post) has come up short. The Court denied review in an order issued today.

This disposition removes any uncertainty hanging over a pretrial hearing later this week and a trial set to begin next Monday.