lucky 13

Steve Korris Jul. 9, 2009, 4:43am

By Steve Korris
AUSTIN � Judges of the 13th District appeals court in Corpus Christi suffered a day of humiliation on July 3, as the Texas Supreme Court reversed four of their decisions.
In two cases they improperly denied attorney fees to defendants, and in another they improperly prevented a business from getting paid.
Worst of all they affirmed a judge who entered default judgment against Dollar General because its lawyer, Clifford Harrison, honored a preferential commitment in Houston.
"Harrison's failure to appear was not intentional or the result of conscious indifference," the Supreme Court stated in an unsigned opinion.
"He attempted to resolve the conflict before trial, apprised the court of his whereabouts the day of trial, and provided a credible explanation for why he believed the court would delay trial," the Justices wrote.
Harrison represented Dollar General in Cameron County against a suit blaming it for a fire that damaged four other stores in a shopping center.
His associate, Christopher Sachitano, told the district judge on the Friday before trial that Harrison was preferentially set for trial in Harris County on Tuesday.
The judge said, "We'll see what happens when we get here on Monday. I don't ever object to people going to another court."
On Monday the plaintiffs requested and obtained a transfer to another judge.
Sachitano told the new judge, Abel Limas, that he wasn't prepared to try the case.
He said Harrison was prepared but was in a preferential trial setting in Harris County.
Limas said Sachitano wouldn't have to try the case but would have to pick a jury.
"The trial judge also said he would work with the attorneys on scheduling," the Justices wrote.
The lawyers chose jurors. Limas instructed them to return on Wednesday.
He told employees to take telephone numbers in case the case started early or late.
Wednesday morning, Limas's office took constant calls from Sachitano, his secretary, and the judge and court coordinator in Harris County.
Though they said the trial would not conclude until afternoon, Limas called the Dollar General case for trial at 1:30 p.m.
With neither Harrison nor Sachitano on hand, Limas told jurors he received calls that Harris was still in trial but he didn't get a call from Harrison.
Limas told jurors he didn't take kindly to "their mannerism and the respect for the court system down here in south Texas."
He discharged the jury, proceeded with a bench trial, and entered judgment against Dollar General.
Thursday, the Harris County judge faxed Limas a letter stating, "For some reason, we are having difficulty making contact with you."
He wrote that he sought advice from the regional presiding judge but his office couldn't reach Limas either.
Dollar General moved for a new trial. Limas denied it and so did the 13th District, but the Supreme Court granted it.
The Justices wrote that "judgment was entered against a party that by neither word nor deed exhibited intention to abandon or frustrate the proceedings."

They wrote, "It is a credit to the trial bench and bar that this type of record rarely ends up before appellate courts."
Next they instructed the 13th District to reconsider its reversal of a $78,123.59 judgment that Dealers Electrical Supply won against school construction contractors.
The 13th District held that Dealers missed a deadline to sue under the McGregor Act, which protects public works suppliers, and that Dealers lacked any other remedy.
The Supreme Court unanimously disagreed, ruling that Dealers could recover under the state Trust Fund Act or common law.
Next the Justices reversed a decision allowing a medical malpractice plaintiff with a weak case to escape responsibility for surgeon Miguel Hernandez's legal fees.
Early in the case District Judge Leticia Lopez denied a motion to dismiss, but plaintiff Julious Ebrom failed to obtain an expert report and moved to nonsuit the case.
Lopez dismissed it but Hernandez appealed, arguing that she should have granted his motion to dismiss. That would have entitled him to attorney's fees.
The 13th District denied the appeal for lack of jurisdiction, figuring that the motion to nonsuit rendered the doctor's motion moot.
Six Supreme Court Justices disagreed, with Phil Johnson delivering the opinion.
"If a timely and sufficient report is not served, the trial court must award the provider its attorney's fees and costs and dismiss the case with prejudice," he wrote.
Three Justices dissented. Chief Justice Wallace Jefferson wrote that Hernandez should have appealed the denial of his motion as soon as it happened.
Finally the Justices reversed a decision holding that plaintiffs in a medical malpractice case didn't have to pay an insurer's $85,000 legal bill.
Plaintiffs would have to reimburse the doctor if the doctor paid his lawyers, Hidalgo County District Judge Noe Gonzalez ruled, but the insurer deserved nothing.
The 13th District affirmed Gonzalez but the Justices reversed her.
In an unsigned opinion they wrote, "By refusing to award costs unless no insurance was involved, the court of appeals completely misunderstood the nature and frustrated the purpose of the statute."

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