We don’t do family law, at least as advocates, so this blog typically does not address opinions in family law cases, but this morning the Third Court of Appeals handed down an opinion that seems worth mentioning, as the Court took the time to mention the deference that is to be given to mediated settlement agreements, and unusual dispute resolution mechanisms that may be embodied therein. The case stems from a 1998 mediated divorce. The decree, which incorporated the mediated settlement agreement, stipulated which schools the children were to attend. It further required that, in the event the parents could not agree on an educational decision, “the parties shall follow the recommendations of the person that is the child’s teacher at the time of the decision.” In other words, although the Court did not frame it as such, the child’s teacher was made sort of a de facto arbitrator of subsequent education-related disputes. At any rate, sure enough, 6 years after the divorce the parents became enmeshed in a dispute over where one of their children ought to go to elementary school. The mother filed an action to amend the decree to give her the exclusive right to make educational decisions on behalf of the children so she could move the child from the school specified in the decree (Bryker Woods) to an Austin private school (St. Andrew’s). The trial court found that the circumstances of the child had materially changed since the decree (the legal standard for modification under the Family Code) and amended the decree as requested by the mother, and the father appealed. The Court of Appeals reversed the trial court’s decision, finding that in fact nothing had materially changed with respect to the child in question since the decree. The evidence put forth as to material change, according to the opinion, was simply evidence that the child had grown up; if it were sufficient, the material change requirement would be meaningless, according to the Court. The Court also noted that the child’s teacher recommended that the child not transfer to the private school. In other words, the potentiality that the parties planned for actually did in fact happen, and the mediated agreement should be allowed to operate as agreed. As the Court notes, “it would undermine the efforts of mediated settlement agreements for us to allow a modification on circumstances that were clearly contemplated by the parties at the time of the rendition of the original divorce decree.” All in all, although it’s a bit outside the scope of this blog, the opinion is an interesting read as commentary on the role of the legal system and how we resolve issues like this. In fact, the opinion even quotes the trial judge’s ruminations on that very subject. Zeifman v. Michels, Cause No. 03-05-00533 Technorati Tags: ADR, Third Court of Appeals, law

Well, this morning’s Texas law explosion is explained in large part by a tremendously important sovereign immunity opinion the Texas Supreme Court handed down. The opinion reverses a 1970 Texas Supreme Court and holds that the “sue and be sued” language that shows up all the time in City charters and statutes and the like may not in fact be construed as a waiver of sovereign immunity from suit. The opinion also notes that the Legislature has recently enacted a provision which waives immunity for breach of contract when a local government enters into a contract, which, according to the Court, would not have been necessary if “sue and be sued” really meant a waiver of immunity from suit. According to the Supreme Court, when a provision of a city charter says that a governmental body can sue and be sued “all it clearly says is that the City can be sued and impleaded in court when suit is permitted, not that immunity is waived for all suits.” (emphasis in original). Thus, the Court overruled the 1970 Missouri Pacific case, over Justice O’Neill’s dissent (“Today, in a sweeping reversal unfettered by the constraints of stare decisis or the deference due the Legislature by its longstanding acceptance of our decision, the Court judicially amends those statutes. . . Such a cavalier approach to precedent is deeply disturbing”). Tooke v. City of Mexia, ___ S.W.3d ___ (Tex. 2006) (Cause No. 03-0878). Technorati Tags: litigation, Texas Supreme Court, law

The Texas Supreme Court ruled this morning to clarify that mandamus review is not necessarily available of an order granting a motion to compel arbitration when the underlying litigation is stayed rather than dismissed. According to the Court, one can only seek review of an order granting arbitration when the evidence shows “clearly and indisputably that the district court did not have the discretion to stay the proceedings pending arbitration.” In this case, Olga Palacios filed a petition for writ of mandamus when a trial court granted a motion to compel arbitration filed by a mortgage company. Her testimony was that she did not sign the offered arbitration agreement, but she did in fact sign several papers whose purposes were unclear, as they were written in English, a language she cannot read. According to the Court, this testimony called her credibility into question, since she did not offer exemplars of her signature to demonstrate that the offered signature was not in fact hers. The Court would be wholly untroubled, in other words, if the arbitration agreement were written in a language Ms. Palacios could not read, so long as she did in fact sign it. Finally, the Court notes: “we recognize there is some one-sidedness in reviewing only orders that deny arbitration, but not orders that compel it. Yet both the Federal and Texas acts leave little uncertainty that this is precisely what the respective legislatures intended.” In re Olga Palacios, ___ S.W.3d ___ (Tex. 2006) (Cause No. 05-0038) Technorati Tags: arbitration, ADR, Texas Supreme Court, law

This morning, the Texas Supreme Court issued an opinion compelling arbitration of certain claims asserted by the Brownsville Independent School District against an air conditioning company relating to the construction of a school. The Court starts its opinion by clarifying the relationship between the FAA and the TAA in Texas courts. So long as state law does not conflict with the FAA to the extent state law would preclude arbitration (such as in the personal injury context), the FAA does not pre-empt the TAA; rather the two statutes concurrently apply. Thus, in many cases either mandamus or interlocutory appeal could be an appropriate means to immediately challenge a trial court refusal to compel arbitration. That procedural discussion out of the way, the Court makes short shrift of the District’s arguments that no arbitration agreements existed in the construction contracts. The Court was also not persuaded by a BISD argument that a separate contractual provision rendered the agreement to arbitrate ambiguous. The contract contained the following provision: Except as otherwise provided in this Contract, any dispute concerning a question of fact arising out of or related to the Contract, which is not disposed of by agreement shall be decided by BISD. . . . The decision of BISD shall be final and conclusive According to the District, this clause, read along with the arbitration clause, rendered the arbitration clause ambiguous, but the Court did not buy it (even though the Court of Appeals had in fact been persuaded). According to the Court, the unusual clause would only apply to disputes like “were the doorknobs solid brass or only brass plate,” and not to the kind of dispute the contractor wanted to arbitrate. In Re D. Wilson Construction Company, et al., ___ S.W.3d ___ (Tex. 2006) (Cause No. 05-0326). Technorati Tags: arbitration, ADR, Texas Supreme Court, law