A wide variety of activity in today’s order list. Two merits opinions, one granted case, one dismissal of a granted petition as having been improvidently granted, a supplemental opinion issued on denial of rehearing expanding the holding of a case, and a three-Justice dissent from denial of rehearing to a certified question.

No new briefs on the merits were requested this week.

Merits decisions

• 04‑0751: Texas Municipal Power Agency v. P.U.C. and City of Bryan consolidated with 04‑0752: Texas Municipal Power Agency v. P.U.C. and City of Bryan. The Court reversed and rendered in part, and remanded the case to the court of appeals. Justice Green wrote for the Court. Justice Brister filed a dissenting opinion, in which Justice Willett joined.
• 06‑1073: Chambers v. O’Quinn. In a per curiam opinion, the Court reverses the court of appeals’ judgment and remands the case to that court.
  

  Commentary: While this case involves the Texas Arbitration Act, its reasoning does not seem at all confined to that context. This appeal followed the final judgment below. One of the issues raised had to do with compelling arbitration — a question that the parties had already taken up through “another court of appeals” (I’m guessing the Fourteenth) and the Supreme Court, each of which had simply denied mandamus relief. In the merits appeal, the First Court held that it lacked “appellate jurisdiction” to decide the question.

  The Texas Supreme Court reversed. Holding that mere denial of interlocutory mandamus relief did not preclude relitigating the same issue even in the same case, the Court explained: “The writ of mandamus is a discretionary writ, and its denial, without comment on the merits, cannot deprive another appellate court from considering the matter in a subsequent appeal.” (citing its prior decision in In re AIU Ins. Co., 148 S.W.3d 109, 119 (Tex. 2004)). For that reason, the Court remanded the case back to the court of appeals for it to review the merits.

Dismissal as Improvidently Granted

<li><strong>05‑0645: </strong> <em>Allstate Insurance Co. v. Fleming</em>.The Court withdraws its order of April 21, 2006, granting the petition for review, as the petition was improvidently granted. The petition for review is dismissed for want of jurisdiction.  <a href="http://www.supreme.courts.state.tx.us/historical/2007/dec/050645.pdf">Per Curiam</a>

Commentary: Although this is presented as an “improvident grant” — the designation usually made when a court with discretionary review decides for some prudential reason not to hear a case, such as realizing that the issue is not squarely presented — the Court explains that this dismissal was for want of interlocutory appellate jurisdiction. Even so, there is very little here that an appellate practitioner will find useful in framing their own jurisdictional arguments. The pivotal sentence of the Court’s per curiam simply states: “No dissenting opinion was filed in the court of appeals, and after reviewing the parties’ briefs and the relevant authorities, we do not find the requisite conflict.”

The Texas Supreme Court used identical language in another opinion issued in today’s list that was a more routine dismissal of a pending (and not yet granted) petition for want of appellate jurisdiction. Liberty Mutual Ins. Co. v. Greisling(No. 04-0902) (per curiam).

Opinions Issued While Denying Rehearing

• 05‑0832: Lamar Homes, Inc. v. Mid-Continent Cas. Co. Justice Brister delivered an opinion dissenting from the denial of rehearing, in which Justice Hecht and Justice Willett joined.
• 06‑0575: Knapp Medical Ctr. v. De La Garza. Supplemental Per Curiam Opinion.
  

  Commentary: This supplemental opinion rejects the argument that a party can use a claim of fraud to circumvent a Rule 11 settlement agreement. It seems that De La Garza advanced that argument in his merits briefing and then filed a motion for rehearing complaining that the Texas Supreme Court did not decide the question. Now they have:

  ‘Texas Rule of Civil Procedure 11 is essentially a “statute of frauds” for settlement agreements. See 7 William V. Dorsaneo III, Texas Litigation Guide § 102.02[5] (2007). We have previously rejected attempts to “use a fraud claim essentially to enforce a contract the Statute makes unenforceable” as an improper circumvention of the statute’s purpose. Haase v. Glazner, 62 S.W.3d 795, 799 (Tex. 2001); see also Nagle v. Nagle, 633 S.W.2d 796, 801 (Tex. 1982). Thus, we have held that “the Statute of Frauds bars a fraud claim to the extent the plaintiff seeks to recover as damages the benefit of a bargain that cannot otherwise be enforced because it fails to comply with the Statute of Frauds.” Haase, 62 S.W.3d at 799. Similarly, a fraud claim cannot be used to circumvent Rule 11 in this manner and thereby enforce an otherwise unenforceable settlement agreement.’

Petition Granted and Set for Argument

• 06‑0979: Sonat Exploration Co. v. Cudd Pressure Control, Inc.. The case has been set for oral argument at 9:00 a.m., February 6, 2008. Here’s the court of appeals opinion, the Texas Supreme Court’s docket sheet, and the set of briefs that have been posted online.
  

  Commentary: This case raises several choice-of-law issues about indemnity contracts. The petition suggests a conflict between the courts of appeals over how to determine which state’s law applies to an indemnity contract and, further, suggests tension between the court of appeals’s decision and the Restatement of Conflicts of law over whether it is proper to choose a state’s law that would have the effect of invalidating the agreement.