“[P]ayment of an appraisal award does not absolve the insurer of statutory liability when an insurer accepts a claim but pays only part of the amount it owes within the statutory deadline. Because the insurer in this case did not pay the amount that ‘must be paid’ on the claim before the statutory deadline, it was not entitled to summary judgment.” Hinojos v. State Farm Lloyds, No. 19-0280 (March 19, 2021) (7-2 decision).
Author Archives: dscoale
Right of control?
The supreme court affirmed a plaintiff’s verdict in a workplace electrocution-injury case, holding that the jury’s verdict about the right of control was supported by sufficient evidence: “Los Compadres’s managing owner, Raul Medina, testified at his pretrial deposition that Torres was our employee,’ but at trial he said he was mistaken about that because Los Compadres had reported Torres’s compensation using 1099 forms instead of W-2 forms, which suggests he was an independent contractor. But Medina also testified that Los Compadres ‘hired’ Torres and paid him a salary to work as the project manager and supervisor—a position responsible for soliciting bids, making sure the job was run timely, making sure all materials arrived at the worksite, and confirming that the contractors completed their jobs before Los Compadres paid them. He acknowledged that Los Compadres authorized Torres to sign the project’s building permit as the ‘owner’ or ‘agent of the owner.’ And Los Compadres’s own expert witness testified, based on his review of the documents, that Torres ‘was apparently an employee of’ and ‘acting on behalf of’ Los Compadres.” No. 19-0643 (March 12, 2021).
Writing Wednesday – Garamond Font.
This is a crosspost from 600Camp, which follows commercial litigation in the Fifth Circuit.
The DC Circuit’s recent style manual amendment that criticized the use of “Garamond” font has drawn national attention. As this matter has now become a pressing issue facing the federal courts, 600Camp weighs in with these thoughts, all of which are written in 14-point size:
Accordingly, if you really like Garamond and are writing a brief with a word limit rather than a page limit, you should consider bumping the size up to 15-point. And of course, in a jurisdiction with page limits rather than word limits, Garamond offers a way to add more substance to your submission–but be careful that this extra substance does not come at the price of less visibility.
Discovery About Arbitration?
In In re Copart, the supreme court granted mandamus relief as to discovery connected with a motion to compel arbitration: “In sum, Ordaz’s motion and affidavit demonstrate no colorable basis or reason to believe that the requested discovery would be material in establishing the agreement’s existence and enforceability. Ordaz thus failed to provide the trial court with a reasonable basis to conclude that it lacks sufficient information to determine whether her claims against Copart are arbitrable.” No. 19-1078 (March 12, 2021).
Punt?
By a 5-4 margin, the supreme court dismissed a closely-watched case about ERCOT’s sovereign immunity on jurisdictional grounds: “[A]fter the court of appeals rendered its decision, and before the parties asked us to review that decision, the trial court entered a final judgment in the underlying suit, and that judgment is now the subject of a separate appeal pending in the court of appeals. Because the trial court’s interlocutory order merged into the final judgment and no longer exists, we cannot grant the relief the parties seek. As a result, any decision we might render would constitute an impermissible advisory opinion, and these consolidated causes are moot.”
A dissent by Chief Justice Hecht–no judicial activist, and no frequent user of exclamation points or italics–took issue with this result: “[T[]e court of appeals has already had the opportunity to review the dismissal. Indeed, it was the court of appeals that ordered the dismissal! And by ruling on immunity, this Court would not be infringing on the court of appeals’ judicial power. The court of appeals has already ruled on that issue. There is no reason for the court to reiterate its ruling in a second appeal. It is waiting on this Court to rule. The Court can resolve the parties’ dispute and grant relief, however it decides the immunity issue, but instead it chooses delay and wasting more of the parties’ and judicial system’s time and resources.” (emphasis and exclamation mark in original).
Another concurrence and dissent elaborated further on the themes in these two opinions. ERCOT v. Panda Power, No. 18-0781 (March 19, 2021).
TX business courts?
My colleague Michael Hurst wrote an insightful op-ed in the Dallas Morning News about a proposed system of specialized business courts for Texas. He questions whether it fits well with constitutional guaranties of the right to jury trial.
Mandamus-able
In re Gonzales, a case about untimely designation of a responsible third party, reviewed authority about “inadequate remedy” for purposes of mandamus relief: “In both cases, the defendants moved for leave to designate a responsible third party from whom the plaintiffs could not recover, creating an imbalance in the proportionate responsibility framework. In both cases, the defendants did not satisfy section 33.004’s provisions that protect a plaintiff’s right not to try the case against an empty chair. And in both cases, the trial courts abused their discretion by granting the defendants’ motions. If Dawson was an appropriate case to grant mandamus relief, then so is this one; requiring Gonzales to go through a trial before remedying the trial court’s error would defeat the substantive right that subsection (j) protects.” No. 20-0506 (March 5, 2021).
Anyone?
The supreme court granted mandamus relief in In re: Durnin, No. 21-0170 (March 2, 2021), which challenged the ballot language about an Austin ordinance related to “camping in public spaces, sitting and lying down on public sidewalks, and the aggressive solicitation of money.”
In a majority opinion by Justice Blacklock, the Court observed: “[I]t is not the courts’ job to micromanage the sentence structure of ballot propositions. Our job is to ensure voters are not misled by inaccuracies or material omissions in the proposition while preserving the governing body’s discretion to select ballot language.” That said, it found that the proposition “is inaccurate and misleading in one important respect: “The proposition states that the ordinance creates a criminal offense and a penalty ‘for anyone sitting or lying down on a public sidewalk’ in the downtown or UT-Austin area. Although the ordinance does criminalize some instances of sitting or lying down on a sidewalk, by using the word “anyone,” the proposition gives the impression that the ordinance criminalizes all instances of sitting or lying down on a sidewalk. That is not true.”
Justice Boyd, joined by Justices Devine and Busby, would go further and dissented: “Based on the plain language of the City of Austin’s charter, I would grant relators relief by requiring the city to state the caption contained in the voters’ certified petition as the proposition on the ballot.”
Accepting Standing
This is a cross-post from 600Commerce, which follows commercial litigation in the Dallsa Court of Appeals.
The Court heard arguments today in In re Estate of Johnson, No. 05-18-01193-CV (Nov. 4, 2019) (mem. op.), a Fifth Court of Appeals case, which presents a fundamental issue in Texas probate law–whether a beneficiary’s acceptance of benefits under a will defeats that beneficiary’s standing to challenge that will.
Federal v. State Finality
This is a cross-post from 600Camp, which follows commercial cases in the U.S. Court of Appeals for the Fifth Circuit.
In Texas practice, “a judgment is final either if ‘it actually disposes of every pending claim and party’ or ‘it clearly and unequivocally states that it finally disposes of all claims and all parties.’” Bella Palma LLC v. Young, 601 S.W.3d 799, 801 (Tex. 2021) (emphasis in original, quoting Lehmann v. Har-Con Corp., 39 S.W.3d 191, 205 (Tex. 2001).
In federal practice, however, “[w]ithout a [Fed. R. Civ. P.] 54(b) order, ‘any order or other decision, however designated, that adjudicates fewer than all the claims or rights and liabilities of fewer than all the parties does not end the action as to any of the claims or parties.’” Guideone Ins. Co. v. First United Methodist Church of Hereford, No. 20-10528 (Feb. 22, 2021, unpublished) (emphasis in original, quoting Fed. R. Civ. P. 54).
