Texas SC stops attempt to forum shop by Houston attorney

By Steve Korris | Nov 20, 2008

Lance Lubel

AUSTIN – Attorney Lance Lubel of Houston tried a trick to pick a judge he wanted, but the Texas Supreme Court wouldn't allow it.

The Justices ruled Nov. 14 that a Lubel client who intervened in a Galveston County benzene suit should have sued separately so the court could assign a judge at random.

The Justices granted defendant Union Carbide a writ of mandamus requiring District Judge Susan Criss to vacate an order that would have kept the case in her court.

"Random assignment of cases is designed to prevent forum shopping," the Justices wrote in an unsigned opinion.

Practices that subvert random assignment breed disrespect for the integrity of the judicial system, they wrote.

Earlier this year the Ninth District appeals court in Beaumont smashed two big Lubel suits from Orange County into many little suits and transferred them all over Texas.

None of Lubel's 12 plaintiffs established venue in Orange County, the Ninth District ruled.

In the Galveston County case, Lubel, Pete Patterson and John Kim filed a motion last year for the estate of John Hall to intervene in a suit that Kenneth Moffett filed.

Moffett had alleged in 2006 that 14 defendants exposed him to benzene that caused a blood disorder.

The intervention motion held those defendants and others liable for the benzene exposure that killed Hall.

Union Carbide, a defendant in both claims, moved to strike the intervention.

Criss held a hearing, but instead of ruling on the motion she severed the Hall claim into a separate suit and kept it on her docket.

Union Carbide sought a writ of mandamus, and the First District appeals court in Houston denied it.

At the Supreme Court, Union Carbide prevailed.

The Justices quoted a rule of civil procedure authorizing a party with a justiciable interest in a pending suit to intervene as a matter of right.

"Because intervention is allowed as a matter of right, the 'justiciable interest' requirement is of paramount importance," they wrote.

The requirement "protects pending cases from having interlopers disrupt the proceedings," they wrote.

They wrote that "the Halls make no claim that their controversy will be affected or resolved by resolution of the Moffett case."

Criss abused her discretion by severing the claims and she lacked discretion to deny the motion to strike, they wrote.

"We need not consider whether the intervention was intended to circumvent Galveston County's local rule requiring random assignment of cases because regardless of the Halls' intent, the intervention and the trial court's abuse of discretion in failing to rule on and grant the motion to strike resulted in circumvention of the random assignment rule," they wrote.

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