An excellent recent article in Law360 summarizes the state of the sometimes-Byzantine structure of Texas’s intermediate appellate courts. The article is behind Law360’s paywall but my remarks are below:

It’s a simple but fundamental point – confirm that the record has the relevant order (or, that there is in fact such an order); see, e.g.:

• “Because the record does not show relator ever filed the motion, we cannot conclude the trial court has a legal duty to rule upon it.”  In re Johnson, No. 05-19-00708-CV (Oct. 21, 2019) (mem. op.); and
• Although appellant asks that the bond be reduced, the record before this Court does not contain a signed order setting the supersedeas bond. Without an order, there is nothing before this Court to review.” Chowdhury v. Wells Fargo Bank, No. 05-19-00965-CV (Oct. 25, 2019) (mem. op.)

The Texas Family Code says: “In a suit in which termination of the parent-child relationship is requested, the court shall appoint an attorney ad litem to represent the interests of: (1) an indigent parent of the child who responds in opposition to the termination.” Accordingly, it is a reversible abuse of discretion not to do so. In re R.R.-L., No. 05-19-00507-CV (Oct. 23, 2019).

The parties’ contract had a 4-year term:

“Subject to jcpenny’s rights to relocate or otherwise change or alter the shops as specified below, the parties agree that the Bodum and O&R Shops will be featured in the designated jcpenny stores for a period of 4 years from the opening date . . .”

But, the “rights . . . specified below” included the right to:

remove, alter, or relocate any and all Bodum or O&R Shops or any portion of a Bodum or O&R Shop. . .

Accordingly, the contract was terminable at will. Bodum USA, Inc. v. J.C. Penney Co., No. 05-18-00813-CV (Oct. 23, 2019) (The opinion has a thorough discussion of Texas contract-interpretation principles, including a reminder that contra proferentum “is a doctrine of last resort.” Substantively, the parties do not appear to have argued whether this termination right made the contract illusory.)

“The court of appeals granted our stay motion! We’re looking good on the mandamus now!” Not necessarily, as shown by In re Gurley, No. 05-19-01118-CV (Oct. 18, 2019) (mem. op.): ” We stayed the trial court’s September 13, 2019 order granting the motion to expunge the lis pendens pending our disposition of the mandamus petition. On our request, real parties filed a response to the mandamus petition. . . . After reviewing the petition for writ of mandamus, the response filed by real parties, and the applicable law, we conclude relator
has not shown he is entitled to the relief requested.” 

After the Confederate disaster at Gettysburg in 1863, the wily Robert E. Lee held off Ulysses Grant for two more years in a series of battles. Dallas’s Confederate statuary is proving similarly wily; after an initial stay to receive full briefing on the point, the Fifth Court agreed that a writ of injunction was appropriate to maintain the downtown Confederate memorial (right, in part): “The Monument was created in 1896 and has already been relocated once. There is no guarantee that the removal process will be seamless and without damage to the Monument, or that if it is ultimately returned to Pioneer Cemetery that it will be in the same condition as it is today.” The Court required the plaintiff to post a $50,000 bond. It also found that a similar application was moot as to a statute of Lee that has already been sold and reinstalled in the Big Bend area of far West Texas (Texas, incidentally, being the location of Lee’s last command in the U.S. Army before siding with the Confederacy.)  In re: Return to Lee Park, No. 05-19-00774-CV (Oct. 10, 2019) (mem. op.)

John Doe, a shadowy figure who has haunted Anglo-American jurisprudence for centuries, produced a failure of appellate jurisdiction in Chappell v. City of Balch Springs. Chappell sued “the City of Balch Springs, Shaila Lynn Gay, Jonathan Haber, and John Doe Supervisors 1-5.” The three named defendants successfully moved to dismiss under Rule 91a, but Chappell was unable to appeal because her “claims against John Doe Supervisors 1-5 remain pending” and thus kept the Rule 91a order from becoming a final judgment. No. 05-19-01046-CV (Oct. 7, 2019) (mem. op.)

In Stegall v. TML Multistate Intergovernmental Employee Benefits Pool, Inc., the panel majority (Justice Pedersen writing, joined by Justice Whitehill) held that a serious medical-treatment claim about cancer treatment was barred by the sovereign immunity of  two parties:”TML . . . an intergovernmental self-insurance risk pool that operates under the Texas Interlocal Cooperation Act,” and UMR . . . one of TML’s third-party administrators.” It summarized: “This case presents an emotional and tragic scenario in which we are asked to ignore the  governmental immunity enjoyed by TML and UMR. However, this Court . . . must apply the law, and mandatory authority interpreting such law, to effectuate the Legislature’s intent.”

A dissent (Justice Partida-Kipness) saw the issue differently: “By creating and participating in the risk pool, TML performed a governmental function for which immunity applies.  The governmental nature of its actions, however, ended with that pooling. Stegall maintains that TML and UMR caused the wrongful death of her husband through improper claims adjustment procedures and decisions. . . . . Those actions are not governmental functions because they are decisions related to the adjusting of an individual insurance claim.” No. 05-18-00239-CV (Oct. 2, 2019) (mem. op.) (all emphasis added).

600Commerce and 600Camp are recognized in the first-ever list of “Texas Trailblazers,” as just published by Texas Lawyer!