Adequate Relief – Pet. Denied

  • In re Oxbow Calcining LLC
    • 09-18-00273-CV, 2018 WL 3763441
    • 172nd District
    • Per Curiam, Aug. 9, 2018
  • PASE filed a petition and application for post-judgment turnover proceeding; Oxbow filed a motion to transfer venue to Harris County and compel the dispute to arbitration, as well as a motion to quash the hearing. Oxbow argued that the motion to transfer and motion to compel should be decided first. The trial court denied the motion to quash.
  • Oxbow contends it lacks an adequate remedy by appeal because the order effectively deprives Oxbow of its contractual right to arbitration and severely compromises its ability to present its defense at the hearing on PASE’s application for a turnover order.
  • The Ninth Court held that Oxbow had an adequate remedy by appeal because any order from a hearing on an application for turnover is appealable.

DWOP – Pet. Denied

  • In re Nowell
    • 548 S.W.3d 104
    • 60th Court of Jefferson County
    • Justice Kreger for the Majority, April 5, 2018
    • Justic Horton for the Dissent
  • Relators answered the suit filed by Henson in February 2010. After the parties conducted initial discovery, the case remained dormant until the election of a new trial judge in January 2017. The new judge set the case on the trial docket for April 2018. Subsequent to the case being set on the trial docket, Relators filed a motion to dismiss for want of prosecution and alternatively, for a continuance.
  • In response to the trial setting and motion to dismiss, Henson’s counsel designated experts and stated that he was unaware that the case had appeared on a dismissal docket. The trial court denied the motion to dismiss but granted a continuance of the case. Relators then filed this mandamus action challenging the judge’s denial of the motion to dismiss.
  • The majority of the Ninth Court noted that a delay of unreasonable duration will raise a conclusive presumption of abandonment of the suit and that the Rules of Judicial Administration provide that civil jury cases are to be brought to final disposition within 18 months of the appearance date. The majority of the Ninth Court then concluded that because Henson had submitted to a deposition, obtained medical records, and responded to requests for discovery, sufficient facts were before the trial court to enable it to conclude that the delay was not attributable to conscious indifference but because both the trial court and plaintiff’s counsel had inadvertently lost track of the case.
  • In his dissenting opinion, Justice Hollis Horton challenged the majority’s opinion regarding the reasonableness of the explanation offered by Henson’s counsel. In particular, Justice Horton noted that the Record was completely devoid of any explanation for the delay by the “attorney in charge” of Henson’s case; that is, the only explanation was one provided by an associate attorney, and the associate gave no reasonable explanation for the significant delays.

Appraisal – Pet. Granted

  • In re Allstate Vehicle & Prop. Ins. Co.
    • 542 S.W.3d 815
    • County Court at Law No. 2 of Montgomery County
    • Per Curiam, Feb. 22, 2018
  • Bailey insured her home for property damages with Allstate. After Bailey’s home was damaged in a storm, Allstate did not agree with the reported loss for damage and repair to the home. A demand letter was made on Allstate asking it to inform Bailey of the appraiser if it wished to conduct an appraisal of the damage. Allstate responded to the letter without regard to an appraiser or appraisal.
  • In response to the suit, Allstate  filed a motion asking the court for an order compelling an appraisal. Bailey argued that Allstate waived its right to an appraisal.The trial court denied Allstate’s motion.
  • The Ninth Court held that (1) Bailey’s counsel could not unilaterally change Allstate’s rights to an appraisal through a letter to Allstate threatening litigation, (2) Allstate had not unreasonably delayed in seeking an appraisal, (3) Bailey was not prejudiced by any delay in Allstate seeking an appraisal, and (4) Allstate was neither required to plead nor compel appraisal via its answer, a counterclaim, or a motion for summary judgment. A party’s right to appraisal may be accomplished by the filing of motion to compel appraisal, which is the procedure that Allstate followed.
  • The Ninth Court held that the trial court abused its discretion in denying Allstate’s motion, conditionally granted the petition for mandamus relief, and directed the trial court to vacate its order denying the motion to compel the appraisal.

Responsible Third Parties – Pet. Granted

  • In re United Parcel Service, Inc.
    • No. 09–18–00002–CV, 2018 WL 753503
    • 60th District of Jefferson County
    • Per Curiam, Feb. 8, 2018
  • UPS filed a motion to designate several responsible third parties (RTP) on October 3, 2017, which at the time was more than 60 days before trial scheduled for December 2017.
  • The trial court’s original May docket control order placed a deadline to designate RTP by June 2, 2017. In October 2017, the trial court signed a new docket control order that vacated the December trial setting to an April 2018 setting and extended deadlines except for the June 2, 2017 deadline to designate RTP.
  • The other parties objected on the basis that UPS’ motion to designate RTP was after the June 2, 2017 deadline, and that the trial court’s new docket control order and trial setting did not invalidate the June 2, 2017 deadline. For those reasons, the trial court denied UPS’ motion.
  • The Ninth Court found that the original docket control order required UPS to designate responsible third parties approximately six months before the initially scheduled trial, a period approximately three times earlier than the statutorily given 60 day period. Though trial courts have authority to enter docket control orders, nothing in Rule 166 allows them to disregard statutory time limits. The Ninth Court held that the trial court abused its discretion and conditionally granted UPS’s petition for mandamus relief, directing the trial court to withdraw its order.