In Re Texas Mutual Insurance Co.
358 S.W.3d 869
Tex. App.2012Background
- Texas Mutual seeks prohibition to limit trial court’s attorney’s-fees award to the mandate scope.
- The Court of Appeals reversed and remanded Boetsch for apportionment of fees between prevailing and non-prevailing claims.
- The clerk’s mandate stated only to reverse and remand for apportionment in accordance with the opinion.
- On remand, the trial court construed the mandate as allowing recovery of appellate/remand fees.
- Texas Mutual argues the trial court exceeded the mandate by authorizing remand/appeal fees beyond the scope of apportionment.
- The court held the mandate did not authorize such fees and issued writs to enforce the scope of the judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Scope of mandate on remand | Boetsch seeks only apportionment per opinion | Boetsch improperly claims remand/appeal fees | Writ of prohibition granted to enforce mandate scope |
| Whether discovery on fees is within scope | Discovery irrelevant to apportionment | Information may be discoverable | Writ of mandamus granted to bar production/admission requests not within mandate |
| Appropriate remedy to enforce mandate | Writs are proper to enforce; no discretion left | Trial court should have some discretion | Conditional writs issued to ensure compliance with mandate |
Key Cases Cited
- In re Assurances Generales Banque Nationale, 334 S.W.3d 323 (Tex.App.-Dallas 2010) (mandate limits and requires adherence to higher court judgment)
- Cessna Aircraft Co. v. Aircraft Network, 345 S.W.3d 139 (Tex.App.-Dallas 2011) (scope of mandate governs remand proceedings)
- Lee v. Downey, 842 S.W.2d 646 (Tex.1992) (aggrieved party may seek writs to enforce mandate compliance)
- In re Columbia Med. Ctr. of Las Colinas, 306 S.W.3d 246 (Tex.2010) (proceedings to ensure compliance with appellate judgment)
- MCI Telecomms. Corp. v. Crowley, 899 S.W.2d 399 (Tex.App.-Fort Worth 1995) (discovery of attorney fees may be patently irrelevant when not at issue)
- Walker v. Packer, 827 S.W.2d 833 (Tex.1992) (limits on discovery and propriety of seeking fees)