law-abatement of appeal | abatement of mandamus proceeding in the supreme court |
ABATEMENT OF PROCEEDINGS IN THE COURTS OF APPEALS / TRIAL
COURTS
Severance v. Patterson, No. 09-0387 (Tex. Jul. 29, 2011)(per curiam)(abatement of Open Beaches
Act case)
Pursuant to article V, section 3-c of the Texas Constitution and Texas Rule of Appellate Procedure 58.1,
this Court agreed to answer questions of state law certified from the United States Court of Appeals for the
Fifth Circuit. We issued the opinion on November 5, 2010. We later granted rehearing. While rehearing
was pending, Appellant Carol Severance sold the property at issue to the City of Galveston in a Federal
Emergency Management Agency buyout program for homes damaged by Hurricane Ike. Appellees
contend that Severance's sale of the real property renders moot both the underlying lawsuit and our
consideration of the certified questions on rehearing, and warrants vacating the original opinion.
Severance disputes these contentions. The parties have notified the United States Court of Appeals for
the Fifth Circuit of the sale.
The determination whether the federal lawsuit is moot must be made by the Fifth Circuit. We abate our
consideration on rehearing of the certified questions pending this mootness determination.
CAROL SEVERANCE v. JERRY PATTERSON, COMMISSIONER OF THE TEXAS GENERAL LAND OFFICE;
GREG ABBOTT, ATTORNEY GENERAL FOR THE STATE OF TEXAS; AND KURT SISTRUNK, DISTRICT
ATTORNEY FOR THE COUNTY OF GALVESTON, TEXAS
The Court abates consideration on rehearing of the certified questions pending the mootness
determination of the United States Court of Appeals for the Fifth Circuit.
Per Curiam Opinion [pdf]
(Chief Justice Jefferson not sitting)
View Electronic Briefs (including numerous amicus briefs)
SEVERANCE v. JERRY PATTERSON, COMMISSIONER OF THE TEXAS GENERAL LAND OFFICE
Gallagher Headquarters Ranch Development, Ltd., No. 08-0773 (Tex. Feb. 12, 2010)(per curiam) (petition
for review in the Supreme Court put on hold pending submission of findings of fact requested from the trial
court)(scope and reach of release in settlement at issue)(petition abated, findings of fact requested from
trial court, scope of release pursuant to settlement at issue)
GALLAGHER HEADQUARTERS RANCH DEVELOPMENT, LTD., CHRIS HILL AND JULIE HOOPER v. CITY
OF SAN ANTONIO AND CITY PUBLIC SERVICE; from Bexar County; 4th district (04-07-00325-CV, 269
SW3d 628, 07-23-08) abatement order issued
[Note: The petition is abated and remanded to the trial court for findings of fact. The trial court shall submit
its findings to this Court no later than May 3, 2010. The parties may, within thirty days after the trial court's
findings are submitted, provide a supplementary brief to this Court.]
Per Curiam Opinion
(Justice Hecht not sitting)
ARBITRATION-RELATED ABATEMENT
The FAA requires courts to stay litigation of issues that are subject to arbitration. See 9 U.S.C.A. § 3
(2009); In re Merrill Lynch & Co., FSB, 235 S.W.3d at 195. The Texas Supreme Court has held that "when
an issue is pending in both arbitration and litigation . . . arbitration `should be given priority to the extent it
is likely to resolve issues material to the lawsuit.," In re Merrill Lynch & Co., Inc., 315 S.W.3d 888, 891 (Tex.
2010) (citing In re Merrill Lynch Co., FSB, 235 S.W.3d at 195).
ABATEMENT AND PLEA IN ABATEMENT IN TRIAL COURTS
A plea in abatement challenges the plaintiff's pleading by asserting that facts outside the pleadings
prevent the suit from going forward until the problem can be cured. Morgan v. City of Alvin, 175 S.W.3d
408, 421 (Tex. App.-Houston [1st Dist.] 2004, no pet.).
Also see:
Texas Causes of Action | 2011 Texas Supreme Court Opinions | 2011 Tex Sup Ct Per Curiams
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