The press reacted very quickly to the Perry Homes decision, getting stories onto their online editions:

• “Texas Supreme Court rules against Mansfield couple in battle with homebuilder” by Wayne Slater of the Dallas Morning News. This one has been “above the fold” on the online version of the website.

• “Houston homebuilder Bob Perry wins big in Texas Supreme Court” from the Texas Politics blog at the Houston Chronicle.

• “Renegade Texas Supreme Court?” by the Legal Trade blog (part of the Houston Chronicle). Not a whole lot of analysis, just an invitation for blog commenters to weigh in on “the court’s anti-arbitration, pro-federal control and pro- medical malpractice case sanctions decisions?” (We aren’t as hungry for comments here, but then again, we aren’t selling ads.)

• “Question for Readers: The Case Against Bob Perry” – Lapsed lawyer Paul Burka of Texas Monthly has his own shout out for reader comments about the case. The comment thread on that site is pretty interesting, with several of the early posters supportive of the legal result of the decision.

All of the stories have the same implicit thesis (and the bloggers make it explicit), suggesting that campaign dollars drove the decision. Yet, none of the stories tries to square that thesis with the 5-4 split of the Justices in this case. If you use these numbers from an earlier Dallas Morning News story (which aggregated contributions from groups associated with Bob Perry over the 2001 to 2006 timeframe), it looks like Perry had given twice as much in contributions to the four Justices who dissented than to the five who ruled in his favor (a total of $209,000 ($52,000 per Justice) versus $131,000 ($26,000 per Justice)). There are lots of ways to spin that, none simple enough for a sound bite.

Of course, this really isn’t a question of math — it’s a question of public confidence. As someone who reads all of the Court’s decisions, I’ve been struck by how deeply divided the Court was here, as it has been over so many recent cases. Those persistent divisions seem to me to undermine the simplistic equation that “campaign contributions equal favorable decisions,” but, by the same token, the closeness of high-profile decisions such as this one may give more fuel to advocates of tougher recusal rules.

And one of those advocates has been former Chief Justice Phillips of the Texas Supreme Court. I missed passing this along earlier, but he wrote the Foreward to a report issued in April by the Brennan Center published its report about using heightened recusal standards to reduce concerns about judicial election and selection: “Fair Courts: Setting Recusal Standards” by James Sample, David Pozen, and Michael Young. A synopsis is here. (( I mentioned an op-ed written by James Sample in this earlier post about election-related controversies in other states. ))

Takeover battles often have more pieces in motion than fit into any one courtroom. In the ongoing Clear Channel merger, the banks (who are trying to escape or at least renegotiate their funding obligations) have filed a petition for writ of mandamus with the Texas Supreme Court seeking dismissal of a pending tort suit against them.

How does that fit into the New York litigation, in which summary-judgment motions are pending?

Adam Ross Sorkin from the New York Times has this very interesting analysis of how the pieces fit together and how a pending Texas case shapes what happens in New York settlement talks.

Is Texas Really 41st in This Ranking? Seriously?

Fifty-state rankings are a creative way to lobby for change. Nobody wants to be last in any list, no matter how calculated.

The “Institute for Legal Reform” at the United States Chamber of Commerce has published its 2008 list, complete with state-by-state press releases, detailed voting information, and video clips about their policy proposals.

It’s a little hard to believe Texas ranks only 41st in this list about best legal environment for business, or that it ranked 44th last year. Oh, well. I’m sure there is an equal-but-opposite list compiled somewhere about the fairness of the legal system in which Texas has just fallen from 6th to 9th.

The Texas-specific press release suggests there are a few “crackpot jurisdictions” within the state and then says:

“The best thing a state can do to attract business is to have a fair legal system,” said Donohue. “Attitudes about Texas’ legal climate will only improve once the courts in these individual jurisdictions begin complying with the spirit and letter of the law.”

Does the real-world data confirm this is “the best thing a state can do to attract business”?

Texas recently moved into the top spot in number of Fortune 500 corporate headquarters, above New York and California.

That’s Texas (ranked 41st today), ahead of New York (ranked 25th — albeit in the top half of the class) and California (ranked 44th). I recognize that locating a corporate headquarters is different than locating a facility the company expects to be a lawsuit magnet. But if I’m choosing which facilities I want my state to attract, that’s a pretty easy call.

First local reports: San Antonio Business Journal :: Southeast Texas Record

Creation-Science Science-Education Education

Without the hyphens, that headline would be mush.

And, in some sense, that’s the problem. The Institute for Creation Research wants Texas to recognize the online masters degrees that it offers to teachers as giving those teachers a special qualification in “science education.” The dispute is over whether their degree program fits within the state’s requirements. (( I presume this would get the teachers a higher salary. ))

ICR says the dispute is about religious beliefs. The state will likely say that its designations are about preparing public-school teachers to teach the curriculum, not about their personal beliefs.

An appeal is already being discussed. From the Texas Observer:

Morris said if the Board votes to uphold the Commissioner’s recommendation, the Institute will appeal the decision in the next 45 days. If the appeal is denied, Morris said, the Institute may take its case to the Texas Supreme Court. “We were denied the right to operate in California and we went through a lengthy and onerous court case before we won,” he said. “It’s an option that we will consider in Texas if we are denied.”

If you’re curious, here is what ICR’s website has to say about its lawsuit against California.

Coverage: Houston Chronicle :: Texas Observer :: Dallas Morning News

Another Election Case Perhaps Headed Up

On March 4th, State Rep. Nathan Macias lost his reelection bid in the primary. Shortly thereafter, he filed suit charging that more than 200 votes cast ballots in both the Republican and Democratic primaries and that approximately 1000 voted twice in the Republican primary.

A visiting judge (James Clawson) was assigned for the trial, set to begin May 19th.

From “Trial Date Set for Election Challenge” in the Herald-Zeitung:

Last week, Macias’ attorney Rene Diaz filed an objection to having Clawson hear the case, seeking to have a new judge take over the proceedings. But Clawson, who has ruled on numerous election contests in the past, disregarded the objection.

“I frankly kind of enjoy (election contests),” Clawson told the court. “They’re America at work.”

Diaz gave no reasoning as to why he wanted a different judge, other than that it is a “right that every civil litigant has in the State of Texas.” He presented Clawson with a handful of other cases from around the state to try and sway him to step down, ultimately to no avail.

It sounds like Macias is considering challenging that decision “in a higher court, possibly the Texas Supreme Court” (but see the word of warning in this earlier post):

Macias and his legal team still can challenge the ruling in a higher court, possibly the Texas Supreme Court, to seek a different judge. Diaz said any decision to do so would likely be made in the next few days.

“We’re considering our options,” Diaz said.

Clear Channel Merger Mandamus — Just Misses Becoming Moot

Apparently the buyout firms have rejected the banks’ offer of binding arbitration. The article says, quoting the banks, that they “remain willing to fund the Clear Channel acquisition.”

The banks’ mandamus petition and request for emergency stay also remain pending as In re Citigroup Global Markets, Inc., No. 08-0289 in the Texas Supreme Court.

The papers opposing that mandamus were due to be filed today, so there may be some action in the case on tomorrow’s order list.

[Update: As noted on the Texas Appellate Law blog, the Third Court issued two orders on Friday, which together cancelled this argument and denied the emergency stay.]

As speculated here and elsewhere earlier, a petition for writ of mandamus was filed yesterday challenging the trial court’s handling of the initial hearing, and the Austin Court immediately scheduled the pending motion for temporary relief for oral argument next Wednesday at 2:00PM. The docket sheet is here. The Court’s order setting the expedited briefing and argument schedule is here. (( The order suggests that Wednesday’s oral argument will be about the stay motion, not the ultimate merits. In this context, however, I’m not sure there is much difference. ))

The newspaper quotes counsel for the relators (Robert Doggett of Texas RioGrande Legal Aid) as saying:

“Obviously, we’re disappointed with the court of appeals failure to act timely,” said Doggett, an attorney representing 48 mothers in the case. He said “having a hearing after the fact” was pointless.

While I’m sure he would have liked immediate relief, I would bet he’s pretty happy to get this response. Having an oral-argument scheduled so quickly is extraordinary.

Other coverage: Texas Appellate Law Blog :: Texas Rural Legal Aid Press Release

It was apparently the biggest show in town: “Even with a two-story gallery in the courtroom, many students were turned away as the line stretched from the door, past the guards, through the metal detector and out into the new building.” That detail, and others, are in this article on Lubbock Online (by the Lubbock Avalanche-Journal). The article discusses Phillips v. Bramlett, a medical-malpractice case that originated in Lubbock.

Other Coverage: Daily Toreador :: KCBD (NBC affiliate, but no video)

Video feeds: Kerlin v. Sauceda :: Phillips v. Bramlett

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.

The Supreme Court of Texas’s last arguments of the term are to be held next Wednesday at Texas Tech. The University’s press release says that video of the arguments will be made available later.

The Texas Lawyer’s blog has a few more details on the new courtroom, which is “a 150-seat high-technology courtroom” that the Court will “break in” with its argument sitting that morning and “the ribbon cutting will follow those arguments.” (The donor for the new courtroom is Mark Lanier, whose technological affinities mirror my own [dead link; page removed by Apple.com].)

By far my favorite fact about the new “Donald M. Hunt Courtroom” was this:

Huffman says the Laniers asked the university to name the courtroom after Hunt, a partner in Lubbock’s Mullin Hoard Brown who is an adjunct professor at the law school and was Mark Lanier’s moot court coach when he was in law school.

As a moot court coach (and former competitor) myself, this warmed my heart a little. (( And I couldn’t help but look up which moot court competition Lanier competed in. It turns out to be the ABA National Moot Court Competition, which is the same team team I have coached for UT. ))

I don’t think any of my former students have yet won enough in settlements and verdicts to donate $6 million to the law school, but it’s probably too late anyway — I think UT has already named most everything after Joe Jamail.

In re H.V.

The Court’s juvenile-justice case In re H.V. was, as the opinion acknowledges, a first for the Court. It also marks a “first” for this blog — the first time I’ve been able to link to a blog post by one of the arguing counsel.

Shawn Matlock practices criminal-defense law in Fort Worth and blogs about it. Here’s how he concludes his summary of the background of In re H.V.:

The State sought review by the Supreme Court, and almost exactly one year ago to the day (April 12, 2007 actually) the case was argued before the Court. David Curl argued the case for the Tarrant County District Attorney’s office, and the juvenile was represented by a handsome, brilliant young attorney. Me.

His post goes on to discuss the case. The Court reversed in part and affirmed in part, suppressing the testimony but permitting the physical evidence to be used. Understandably, H.V.’s counsel’s view of the opinion is equally divided.

Other coverage: Houston Chronicle’s Texas Politics Blog

Quote of the Week

“[Jim] Ho, who will assume his duties as solicitor general when Cruz leaves, jokes, ‘I would say I have huge shoes to fill but for the fact that Ted [Cruz] wears boots.'” from Tex Parte.

Both Texas Lawyer and the Texas Bar Journal have now mentioned the “black ostrich cowboy boots.”.

More comprehensive coverage (of Jim and Ted, but not the boots): Above the Law.

Congratulations

… to Dallas’s Catharina Haynes. who has been confirmed to the Fifth Circuit.

The Dallas Morning News article is here. (( It includes an almost obligatory “critics say…” paragraph:

The American Bar Association rated her “well qualified.” But some liberal groups criticized her, noting that in eight years as a judge, she presided solely over civil cases, handled no constitutional conflicts and wrote no opinions, making it hard to assess her legal views.

As best I can see, that criticism is that Judge Haynes served as a state district judge in the Texas system. If that was the debate, it’s really no surprise that her confirmation came by voice vote. ))

If I’m reading this page on the Senate website correctly, she is the first circuit judge to be confirmed in 2008.