This week’s orders list was a quiet one, with no opinion and no grants.

This past week, the Court heard oral arguments, including a session yesterday at Texas A&M University. Coverage: The Eagle· The Battalion

The next internal conference to discuss pending petitions is scheduled for November 18 and 19.

With today’s orders list, the Texas Supreme Court did not grant any cases for argument or issue any merits decisions.

It did issue one interesting opinion, however, granting an abatement in a mandamus action. That opinion resolves a split among the courts of appeals about how to proceed after a trial judge has recused himself or herself.

Opinion

If a trial judge whose order is being challenged is later recused, the court of appeals should either abate or deny relief

IN RE MELISSA BLEVINS, No. 12-0636

Per Curiam

One of the ways that mandamus practice differs from most appellate practice is that the procedure is personal to the officeholder (judge or official) whose decision is being challenged.

With the use of mandamus to challenge fairly common pretrial orders, there is a mismatch between error and remedy — the “writ” of mandamus is the state compelling behavior by one of its officeholders. (( This is why the normal practice is for Texas courts to issue mandamus “conditionally,” together with a polite sentence stating the court’s confidence that the order will be obeyed. No one wants to issue the writ unless truly needed. ))

As an artifact of this system, the Texas rules provide that a former trial judge cannot be mandamused. Conventional appeals involving that judge continue; they are not personal to the judge. But the mandamus action must be abated until a new judge holding that office is first given a chance to revisit the issue. Tex. R. App. P. 7.2 (discussing what happens “if that person ceases to hold office before the … original proceeding is finally disposed”).

The courts of appeals were split three ways on what to do if a judge had merely recused themselves, and not ceased to hold office: Some held that the mandamus must continue because Rule 7.2 was not triggered. Some held that the mandamus must be dismissed outright. And some held that the court of appeals should abate, much as it would if the judge had ceased to hold office.

Rather than parsing the language of the rule, the Supreme Court looks to the appellate courts’ more general discretion not to grant mandamus relief. It holds that an appellate court faced with this situation should either abate or, depending on the circumstances, dismiss the mandamus petition. It is up to the appellate court “to determine which of the approaches affords a better and more efficient manner of resolving the dispute.”

The underlying facts here involve an order transferring children from foster parents to a biological father that had been deported to Mexico, bringing to mind the situation in In re E.N.C., J.A.C., S.A.L., N.A.G. and C.G.L., No. 11-0713 . Apparently to put a firm deadline on resolving the issue, the Court abated the mandamus proceeding and directed the new trial judge to report back no later than December 20, 2013.

With this week’s orders list, the Texas Supreme Court issued one per curiam opinion. It did not choose any new cases for oral argument.

The Court also reset Bob Greene, as next friend of Lewayne Greene v. Farmers Insurance Exchange, No. 12-0867 from its December sitting. That argument will now be heard on January 7, 2014.

Opinions

Although time records are not always required, at least some documents must support the calculation of attorneys fees

CITY OF LAREDO, TEXAS v. LUIS MONTANO, CECILIA MONTANO MOTA, CRUZ JORGE MONTANO, CLARENCE HILLBURN AND CLARENCE HILLBURN AS EXECUTOR OF THE ESTATE OF GLORIA MONTANO HILLBURN, DECEASED, No. 12-0274

Per Curiam

The Court revisited the issue raised in El Apple I, Ltd. v. Myriam Olivas, No. 10-0490 about what evidence is needed to prove up attorney’s fees under some fee-shifting statutes.

Here, one of the attorneys contended that he had worked for 226 weeks on the case, with a “conservative” estimate of 6 hours per week. Based on those estimates, he calculated a fee of $339,000. (( The statute here provides attorney’s fees to a property owner who prevails in arguing that a government’s use of eminent domain was not for a public purpose. Although the Court noted that this was not a true “lodestar” provision, it applied the guidance of El Apple, noting that the parties had approached the issue as if it were a lodestar question. ))

The Texas Supreme Court holds that is not sufficient evidence. In doing so, it made a nice clarification of El Apple:

Contrary to the City’s argument,
El Apple does not hold that a lodestar fee can only be established through time records or billing statements. We said instead that an attorney could testify to the details of his work, but that “in all but the simplest cases, the attorney would probably have to refer to some type of record or documentation to provide this information.” For this reason, we encouraged attorneys using the lodestar method … to keep contemporaneous records of their time as they would for their own client.

Lodestar fees do not require strict time records, although time records are one obvious way to clear the evidentiary hurdle.

Here, the Court found that making a trial calculation of ‘226 weeks × 6 hours’ was not enough. The Court noted that some weeks were surely more, and some were surely less. Because the record did not further explain that ‘6 hour’ figure, it could not satisfy the standard. The Court also noted its “puzzlement” that the attorney made no records of time, prepared no bills, and “does not appear to have known how much he was owed … until the calculations at trial.”

The Court reversed this portion of the attorneys fee award and remanded.

This week’s orders list brought three grants for oral argument and one petition salvaged from the denial pile on rehearing.

Grants

Can fire insurance be denied for technical breaches (that don’t affect causation)?

Under Texas Insurance Code §862.054, a policyholder’s breach of a condition or warranty is no defense to coverage under a fire insurance policy unless it “contributed to cause the destruction of the property.”

This case involves a property that was left vacant by the owner. The petition argues that, because there is no proof that vacancy contributed to the fire, coverage should not have been denied on that basis. Among other arguments, the respondents contend that the better reading of §862.054 is that it applies only to coverage for “personal property,” not for the structure itself.

Set for argument December 5th

Damages to market value caused by “temporary” environmental contamination

The petition challenges a damage award for lost market value of property, arguing that the landowner failed to show a “permanent” reduction in market value.

In one issue, the petition also argues that TCEQ regulations displace their common-law duties.

Set for argument December 5th

Objections to a charge made after the charge conference; Jones Act liability

The substantive issue is about how to draw the line between “specific orders” and “general orders” for purposes of maritime liability under the Jones Act.

A procedural issue raised is whether a proposed jury instruction tendered before the charge is read to the jury is timely under Rule 272 (“…before the charge is read to the jury”), even if it occurs after a different deadline set by the trial court (such as a charge conference).

Set for argument December 5th

Rehearing granted

The Court granted rehearing for Texas Department of Aging and Disability Services a/k/a Brenham State School, Anthony V. Watson, Dwane B. Hubbard... v. Mary Cannon, individually and As Representative of the Estate of Patrick Tate Dyess, Deceased, No. 12-0830 , a petition about §101.106(e) immunity, which the Court had denied at the petition stage in April. The case will now receive full briefing on the merits.

Puzzler of the week

What is the procedure when the Texas Supreme Court is, itself, reversed?

The Court also sent Vernon F. Minton v. Jerry W. Gunn, Individually, Williams Squire & Wren..., No. 10-0141 back to the lower court after it was reversed by the U.S. Supreme Court. The mechanism that the Texas Supreme Court used was inelegant: it withdrew the original grant of review (from February 2011, before its decision or the U.S. Supreme Court appeal) as having been “improvidently granted” and dismissed the petition.

That accomplishes the goal of passing the case back to the court of appeals, which can then issue its own mandate.

But withdrawing the grant as “improvident” after so much has happened seems a little like Season 9 of Dallas (“Good morning!”). (( For my statistical purposes, I’ll assume that withdrawing the grant of review in February 2011 has no effect on the December 2011 opinions that resulted from that grant. ))

That said, I don’t know that the Court had a more elegant option under the Texas rules. Suggestions are welcome.

The Texas Supreme Court did not issue any opinions or choose new cases for argument with this week’s orders list.

With today’s orders list, the Court did not issue any opinions or choose new cases for oral argument.

On Tuesday of this week, departing Chief Justice Jefferson passed the torch to new Chief Justice Hecht, swearing him in during a ceremony in the Supreme Court chamber. (photos)

On Thursday, new Justice Jeff Brown took the oath of office to join the Court. (photos) He has been promoted from Houston’s Fourteenth Court of Appeals, where he had served since 2007. From 2001 to 2007, he was a district judge in Houston.

With today’s orders list, the Texas Supreme Court issues opinions in one case. No new cases were chosen for argument this fall.

Opinion

How does a family-law “mediated settlement agreement” (MSA) change a trial court’s power to make rulings in the best interest of a child?

IN RE STEPHANIE LEE, No. 11-0732

Opinion of the Court

Dissenting

Concurring

To see individual opinions, click on the voting groups above.

It’s not that often that you can tell which Justice in a 5-4 majority was the swing vote. In this case, however, it was Justice Guzman whose vote defines the scope of the ruling. She joined the majority only in part, and her concurring opinion expresses agreement with the dissent on other legal issues.

The broad question was whether a trial court should have entered judgment on a mediated settlement agreement (MSA) of a family dispute. The trial court refused, concluding that doing so was not in the best interest of the child.

The Court granted mandamus relief, concluding that under the Texas statute to promote mediated settlements, the trial court did not have authority to second guess the best-interests determination reached through mediation. (Justice Lehrmann’s opinion for the Court announces that relief.)

Justice Guzman joined that opinion only in part. The opinion of the Court had concluded that the statute left a trial court no discretion to refuse to enter an MSA — whether on grounds of the best interest of the child or even in a situation where there was evidence of child endangerment. (Justice Lehrmann’s opinion notes there are other ways, through other legal mechanisms, that a trial court could report the evidence of endangerment to appropriate authorities. So, the trial court is not supposed to ignore the evidence. It just cannot refuse to enter the MSA on that ground.)

Justice Guzman did not share that statutory interpretation. Although she agreed that the statute did not permit an MSA to be second-guessed on best-interest grounds, she interprets the statute to allow a trial court to refuse to enter the MSA if there is evidence of child endangerment.

On that statutory interpretation, Justice Guzman agrees largely with the four-Justice dissent written by Justice Green. Five Justices read the statute to allow a trial court to refuse to enter an MSA if there is evidence of child endangerment. (( The dissent has a broader reading of the statute, but the common ground is that child endangerment is enough. Whether this kind of agreement on a legal point between a concurrence and a four-Justice dissent constitutes a “holding” is an exercise left for the reader — and for future Bluebooking quizzes. ))

So, if you’re counting at home:

• Only four Justices favor the statutory interpretation in the majority/plurality opinion.

• Five Justices favor a statutory interpretation more like that advanced by the dissent.

But Justice Guzman joined with the judgment favored by the majority, rather than the dissent, because she concluded that the evidence on this record was not sufficient to indicate child endangerment. Her opinion explains that the trial court sustained a hearsay objection to the only evidence suggesting endangerment so the record “does not establish the threshold I believe must be met before a trial court may disregard legislative policy concerning the
deference to which MSAs are entitled.”

With today’s orders list, the Texas Supreme Court chose five petitions for argument this fall and issued one opinion.

The Court also granted a joint request to dismiss in Enterprise Products Partners, L.P. and Dixie Pipeline Company v. Catherine Mitchell, et al., No. 11-0366 , a case that was argued last December and has been abated since May 2013.

Grants

• Waste Management of Texas, Inc. v. Texas Disposal Systems Landfill, Inc., No. 12-0522 : The case is about defamation of a business. One issue is whether a corporation can invoke the doctrine of defamation per se, and if so, what proof of damages it must offer. Another is the level of proof that is legally sufficient to show actual malice. set for December 3

• Allstate Insurance Company v. Michael Spellings, et al., No. 12-0824 : The petition asks whether equitable subrogation allows an insurer to seek recovery from “the alcohol-providing, drag-racing tortfeasors who caused the accident.” set for December 3

• In re Ford Motor Company, No. 12-0957 : The mandamus petition argues that the trial court should have dismissed for forum non conveniens where a car accident took place in Mexico, its occupants were citizens and residents of Mexico, and the connection to Texas was the residence of a wrongful-death beneficiary. set for December 3

• McAllen Hospitals, L.P. d/b/a McAllen Medical Center v. State Farm County Mutual Insurance Company of Texas, No. 12-0983 : The petition involves the Texas statute governing the liens that hospitals can place over settlement proceeds to injury victims (Texas Property Code chapter 55). set for December 4

• The City of Watauga v. Russell Gordon, No. 13-0012 : The petition asks whether an officer’s act in handcuffing someone is an “intentional” act under the Texas Tort Claims Act, noting a split among the courts of appeals for similar questions. set for December 4

Opinion

Today’s opinion was a follow-up to last month’s decision in Texas Commission on Environmental Quality v. City of Waco, No. 11-0729 .

TEXAS COMMISSION ON ENVIRONMENTAL QUALITY v. BOSQUE RIVER COALITION, No. 11-0737

Opinion of the Court

The Court describes this as a “companion case” to last month’s Texas Commission on Environmental Quality v. City of Waco, No. 11-0729 decision.

The dispositive issue was the same: whether an entity could demand a contested-case hearing before the Texas Commission on Environmental Quality about whether a permit change sought by a local dairy operation would adversely impact water quality.

Here, the entity seeking a hearing was Bosque River Coalition, a group that opposed the permit. The Court notes that the group “did not exist at the time” the Commission was receiving public comments. Instead, it adopted the City of Waco’s comments as the basis for its objection.

The Bosque River Coalition argued that three of its members were themselves “affected persons” who could demand a contested-case proceeding because they owned property downstream from this dairy.

The Court held that the statutory construction it found in Chapter 26 of the Water Code in City of Waco compelled the same result here. It reversed and rendered judgment for the Commission, holding that no contested-case hearing was required.