A recent concurrence from the denial of a mandamus petition provided a reminder about the precedential value of a denial: “[T]his Court’s failure to grant a petition for writ of mandamus is not an adjudication of, nor even a comment on, the merits of a case in any respect, including whether mandamus relief was available.” (quoting In re AIU Ins. Co., 148 S.W.3d 109, 119 (Tex. 2004)).

At issue in Green v. City of DeSoto was whether an exception to horizontal stare decisis–an intervening decision by a higher court–allowed a plaintiff’s otherwise-barred claim to proceed. The question developed as follows:

• An earlier Fifth Court case upheld a defense summary judgment on immunity grounds because “the evidence showed the damage to the [railroad] tracks was caused by the derailment, not directly by the vehicles while placing the road-base material on the tracks.”
• An intervening supreme court case found no immunity when a government employee failed to set the emergency break in a parked van, and the van caused damage when it went into motion.
• This case was controlled by the earlier Fifth Court opinion. The collision of the van in the supreme court was a material distinction here: “[T]he Greens’ damages were not caused directly by the motorized equipment. The City’s equipment created the condition, the dirt dam, that led to the flooding of the Greens’ property and the Greens’ damages. This is insufficient to create the required nexus between the City’s use of motor-driven equipment and the Greens’ damages.”

No. 05-23-00740-CV (July 9, 2024) (mem. op.).