The Appellate Record : Texas Appellate Lawyer & Attorney Kendall Gray for Fifth Circuit & Supreme Court Appeals

Several new opinions today from the Supreme Court of Texas.  The most notable is the court's choice to reverse it's position in Marks v. St. Luke's Episcopal Hospital, a highly divided case that has been pending on rehearing since last August. I hope to write a future post on whether such delays and such reversals are a good thing.  (They are not).

Rather than reinvent the wheel and write up summaries of all of today's opinions, I'll refer you to a great, down and dirty summary of the issues on Don Cruse's SCOTX Blog.

After the break, this post will focus on the new petitions for review.

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On Monday, the Fifth Circuit released Jacskon v. Tanfoglio Giuseppe S.R.L. (pdf) affirming the district court’s dismissal for lack of personal jurisdiction over the affiliate of a defunct Italian firearms manufacturer. Judge Garza wrote the court’s opinion.

It only took three appeals to finally result in the district court's dismissal of an affiliate that did not manufacture any part of the allegedly defective firearm. Along the way, the Court held:

• There was no general jurisdiction based upon two unrelated trade show visits, untargeted national advertising and shipment of components (for other than the firearm in question) to Florida for assembly;
• There was no specific jurisdiction based upon the stream of commerce theory principally because the defendant did not start manufacturing the model of firearm at issue until after the decedent’s accident; and
• The jurisdictional contacts of the defunct affiliate that manufactured the firearm could not be attributed to the defendant because they were not alter egos or a single enterprise--the companies had maintained all the corporate formalities required by Italian law and had properly liquidated the failed manufacturer under Italian law.

Also of interest on Monday was Combo Maritime, Inc. v. U.S. United Bulk Terminal (pdf), which deals with settlement, contribution issues, and presumptions in maritime collision cases. It gets an honorable mention just for citing a really really old admiralty doctrine deriving from the Laws of Oleron in the 12th century. 

Evidentiary presumptions and 12th century law from the Consolato del Mare.* It just doesn’t get any better than this.

*According to the History of Law website, The Consolato del Mare inspired the second great code of maritime regulation, the Laws of Oleron, which are supposed to have been compiled about A.D. 1150. It is generally understood that we owe them to a woman, Eleanor, Duchess of Guienne, Queen first of Louis VII of France, who procured a divorce from her, and afterwards of Henry II of England, the first of the Plantagenets.

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And so we reach the dog days of summer when things start getting back to "normal" for grownups while kiddos head back to school, there to write the obligatory essay: what I did on my summer vacation.

Well, the Supreme Court of Texas is back to it again this week, having held its first full conference since the summer break.  The result was 2 new opinions hot and fresh from the oven or perhaps cooked well done on a Texas sidewalk under the August sun.   The court also granted two petitions for review and set one mandamus for argument.

After the jump summaries and links to the new opinions. 

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Wednesday, the Fifth Circuit released Choice Health Care Inc. v. Kaiser Health Plan of Colorado (pdf) in which it upheld the dismissal of a foreign health insurer/HMO for lack of personal jurisdiction.  The court rejected an attempted extension of the "stream of commerce" theory of minimum contacts in an opinion written by Circuit Judge Davis. 

After the break, analysis and details of the opinion.

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Back on July 2, the SCOTX released its final opinions before the Summer doldrums.  This made me wonder what might be in the offing when the Court returns in August. 

Fortunately, there is an App for that.  And Don Cruse over at the Supreme Court of Texas Blog supplies it.

If you click on the Docket DB link you can follow another link to the pending docket categorizing cases by where they stand in the process.  From there, you can choose the link showing the cases (by age) that have been argued and are awaiting decision. 

There you see the tale of the tape, the oldest case is Solar Applications Engineering v. T. A. Operating, which was filed in April 2006.

You remember April 2006. Tom Delay stepped down from Congress. The former governor of Illinois was convicted of corruption.

No, not the one with the hair, the other one.

Then a year and a half later, the case was argued, in October 2007.

You remember October 2007.  Al Gore won a share of the Nobel Peace Prize and Iran and North Korea said they would dismantle their nuclear programs.

No, not that time.  The other time.

But, in the words of Coach John Wooden (who was alive in October 2007), "Goodness gracious, sakes alive," argument was over two and a half years ago.  The court has lost two of the nine members who were around for the argument.

What could account for this?

My curiosity got the better of me, and I checked out the petition for review.  Certainly it must be horrifically complex with many thorny issues.

Not exactly.  The issue presented is:

Is a general contractor who has substantially performed a construction contract required to provide lien releases from it and its subcontractors as a condition to sue an owner who has refused to pay for work done?

Well, I'm sure the Respondent's lawyer has something to say about it too, but that doesn't seem so hard.

Then it must be substandard lawyering that is mucking up the issues, right?

Not exactly.  The Petitioner is represented by Doug Alexander and the Respondent by Sharon Callaway.  They both "got game."

So there can be but one explanation that can account for the complete disappearance of matter from the known universe. 

There is a worm hole in the Supreme Court's suite of offices, and Cause No. 06-0243 has fallen through the void in the space/time continuum and entered a parallel universe in which parties' time and money are no object. 

If not, if in fact the cause is still housed in our dimension, perhaps contractors or lien holders will need to start holding candlelight vigils with hunger strikes when the next SCOTX opinions start appearing in mid August.

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