J.B. v H.B. Same-sex divorce case - Death of respondent moots Texas Supreme Court appeal

UNTIL DEATH DO US PART: Long-pending same-sex divorce appeal dismissed as moot following death of one of the parties. 
  
According to a motion to dismiss filed by the petitioner in J.B v. H.B., the respondent in the trial court, H.B. [Henry Buck], died on April 11, 2015, thus rendering the appeal moot. The State agreed, and the case was dismissed by the Texas Supreme Court on June 19, 2015, the same day it issued its opinion in State of Texas v. Daly, the same-sex divorce case from Austin involving a lesbian couple. 

Texas Supreme Court's postcard to deceased same-sex spouse
in same-sex divorce case J.B. v. H.B. who mooted the pending appeal by his death.  

The Attorney General representing the State of Texas did insist, however, that the opinion issued by the Dallas Court of Appeals -- which favored the State -- not be vacated. In re Marriage of J.B. & H.B ., 326 S.W.3d 654 (Tex.App. - Dallas, 2010). 

In re State of Texas, Relator

No. 05-09-01170-CV

Court of Appeals of Texas, Dallas.

August 31, 2010.

Supplemental Opinion on Denial of En Banc Reconsideration December 8, 2010.

Before Justices BRIDGES, FITZGERALD, and FILLMORE.

OPINION

Opinion By Justice FITZGERALD.

Does a Texas district court have subject-matter jurisdiction over a divorce case arising from a same-sex marriage that occurred 659*659 in Massachusetts? The trial court held that it had jurisdiction and that article I, section 32(a) of the Texas Constitution and section 6.204 of the Texas Family Code, which limit marriage to opposite-sex couples, violate the Equal Protection Clause of the Fourteenth Amendment. We hold that Texas district courts do not have subject-matter jurisdiction to hear a same-sex divorce case. Texas's laws compelling this result do not violate the Equal Protection Clause of the Fourteenth Amendment.

Accordingly, we reverse the trial court's order and remand with instructions to dismiss the case for lack of subject-matter jurisdiction. We also conditionally grant the State's petition for writ of mandamus to correct the trial court's erroneous striking of the State's petition in intervention.

I. BACKGROUND

Appellee filed a petition for divorce in Dallas County in which he sought a divorce from H.B., whom appellee alleged to be his husband. Appellee alleged that he and H.B. were lawfully married in Massachusetts in September 2006 and moved to Texas in 2008. Appellee further alleged that he and H.B. "ceased to live together as husband and husband" in November 2008.

Appellee alleged in his divorce petition that there are no children of the marriage, born or adopted, and he requested a division of community property if a property-division agreement could not be reached. He prayed for a divorce, that his last name be changed back to his original last name, and "for general relief." The record contains no answer by H.B.

A few days after appellee filed suit, the State intervened in the action "as a party respondent to oppose the Petition for Divorce and defend the constitutionality of Texas and federal law." The Texas laws in question are article I, section 32(a) of the Texas Constitution and section 6.204 of the Texas Family Code. The federal law in question is the Defense of Marriage Act (DOMA), 28 U.S.C. § 1738C.[1] The State alleged that appellee is not a party to a "marriage" under Texas law, that he is therefore not eligible for the remedy of divorce, and that the trial court cannot grant a divorce without violating Texas law. At the end of its petition in intervention, the State prayed for dismissal of the petition for divorce.

Several weeks later, the State filed a plea to the jurisdiction in which it asserted, inter alia, that the trial court lacked subject-matter jurisdiction because appellee's petition demonstrated on its face that he and H.B. were not "married" as a matter of Texas law. The State asserted that section 6.204(c) of the family code "strips courts of jurisdiction" to confer the legal status of marriage upon any relationship besides the union of one man and one woman—even if only for the purpose of granting a divorce.

The trial court denied the State's plea to the jurisdiction without a hearing. In its order, the court concluded that article I, section 32(a) of the Texas Constitution and section 6.204 of the family code violate the Equal Protection Clause of the Fourteenth Amendment. It further concluded that it 660*660 had jurisdiction "to hear a suit for divorce filed by persons legally married in another jurisdiction and who meet the residency and other prerequisites required to file for divorce in Dallas County, Texas." It ordered "that Intervenor's Plea to the Jurisdiction is denied and that the Intervention filed by the Office of the Attorney General is hereby stricken." The State filed its notice of interlocutory appeal the day after the trial court signed the order. A few days later, the State filed its Conditional Petition for Writ of Mandamus in this Court seeking relief from the part of the trial court's order striking its petition in intervention.

Within twenty days after the court signed the order, appellee filed a request for findings of fact and conclusions of law. The State opposed the request. A few weeks later, the trial court signed both a set of findings of fact and conclusions of law and an amended order denying the State's plea to the jurisdiction. In the amended order, the court made no reference to article I, section 32 of the Texas Constitution, concluded that section 6.204 of the family code violated several provisions of the federal Constitution in addition to the Equal Protection Clause, and concluded that the State lacked both constitutional and statutory authority to intervene. The amended order concluded, "Therefore, the State's Plea to the Jurisdiction is denied and the Intervention filed by the Office of the Attorney General is hereby stricken."

We have consolidated the State's mandamus proceeding with its interlocutory appeal.

Texas Supreme Court split on AG's appeal of same-sex divorce decree: Majority votes to uphold dismissal for procedural reasons, Justice Willett and two of his peers would have created special rule to permit Attorney General to pursue appeal in the highest court

 
TEXAS SUPREME COURT FINALLY TURNS AWAY ATTORNEY GENERAL'S ATTACK ON SAME-SEX DIVORCE DECREE WITHOUT DECIDING THE CONSTITUTIONAL ISSUES, WHICH AWAIT DECISION IN OTHER PENDING CASES  

While the same-sex marriage cases from Travis County (Austin) remain under review, the Texas Supreme Court last Friday (6/19/2015) disposed of two long-pending same-sex divorce cases from Dallas and Austin, respectively. The case from Dallas, which involved two men, was dismissed because one of the parties had died in the interim. Opinion below: In re Marriage of J.B. and H.B., 326 S.W.3d 654 (Tex. App.—Dallas 2010, pet. dism’d). --> Death of same-sex spouse moots Texas Supreme Court appeal.

The other one involved a lesbian couple, Angelique Naylor and Sabina Daly, who had married in Massachusetts and were residents of Texas at the time their relationship failed. After one of them brought a contested suit for divorce, they subsequently settled their differences, resulting in the grant of an agreed divorce. The Attorney General sought to invalidate the judgment after the fact, but was unsuccessful in the courts below.  State v. Naylor, 330 S.W.3d 434 (Tex. App.—Austin 2011).

In the Supreme Court, the AG undertook a two-pronged approach - an appeal from the dismissal by the Austin Court of Appeals and a request for mandamus relief. The attempt to  overturn the divorce decree ultimately resulted in rejection by the Supreme Court for procedural reason. State of Texas v. Naylor, No. 11-0114 (Tex. June 19, 2015)("We agree with the court of appeals that the State lacks standing to appeal the trial court’s decree.").

As it should. The Attorney General had intervened in the Austin case only after the agreed divorce had been granted by the trial judge. The trial court judge disapproved the AG's belated post-judgment intervention and the Third Court of Appeal in Austin dismissed the Attorney General's attempted appeal as a non-party for want of standing and resultant lack of jurisdiction. The Supreme Court likewise found that it couldn't reach the merits because they were not properly before the court.

The Attorney General was the only one to challenge the agreed decree of divorce, and did not have standing to do so because the State was not a party to the case.

But the Supreme Court's resolution was not unanimous, which is the likely reason why it took so long for the court the decide the case. Justice Willett would have exempted the Attorney General from having to play by the same rules, and would have allowed the AG pursue his attack on the same-sex divorce decree even though he had not filed a petition in intervention in a timely fashion. The AG failed to do so fully aware of the pendency of the case involving the same-sex couple. Representative of the Attorney General were even in attendance at the hearing that resulted in an agreed resolution.

Partial snip of June 19, 2016 Orders List, which has links to opinions
and Supreme Court dockets 

Justices Guzman and Justice Devine joined Willett's dissent. Devine also wrote a separate opinion that addressed the merits of the constitutional issues that majority did not reach. Justice Willett nevertheless complained that the State had not been afforded a hearing. Even though the State had made its case in the Third Court of Appeals as well as in the Supreme Court. The majority decided the the merits could not be reached for procedural reasons, but that hardly means that they did not read the briefs and did not ponder the State's arguments.

Justice Boyd sided with the majority, but also wrote a separate concurrence, stressing that the State was not bound by the divorce decree. Lehrmann abstained, with no reasons given. The case was thus resolved on a 5 to 3 vote. But it was not resolved on the merits of the underlying issue: the validity of Texas law as to non-recognition of same-sex marriages. That is the pivotal issue in the cases that remain pending, one involving the grant of a same-sex marriage license pursuant to a district court's order, the other one involving the claim of a common law marriage, and claim to a share of the estate under the intestacy laws, in the probate context.

The case numbers in the Supreme Court are 15-0139 and 15-0135 respectively. Both cases are styled In Re State of Texas. 

Oddly, Attorney General Paxton released a statement shortly after the Texas Supreme Court confirmed that the lack-of-jurisdiction dismissal of State v Daly was proper in which he asserting that the Court effectively recognized same-sex divorce in Texas. Paxton further complained that the Attorney General should always have a voice in the discussion when the Texas Constitution is at risk. As if the AG did not get a chance to brief its case in two appellate courts, first in the Third Court of Appeals and in then in the Supreme Court of Texas, not to mention being granted oral argument. What Ken Paxton was obviously unhappy about is that the Court did not rule in his favor on the merits.

THE ATTORNEY GENERAL'S BRIEF 

ADDRESSED THE U.S. CONSTITUTIONAL ARGUMENTS 

[Snippet from relevant portion of Table of Contents] 

Editorial note: This post was updated 6/23/2015 
  

IN THE SUPREME COURT OF TEXAS

NO. 11-0114

STATE OF TEXAS, PETITIONER,

v.

ANGELIQUE NAYLOR AND SABINA DALY, RESPONDENTS

ON PETITION FOR REVIEW FROM THE

COURT OF APPEALS FOR THE THIRD DISTRICT OF TEXAS

- consolidated with -

NO. 11-0114 

IN RE STATE OF TEXAS, RELATOR

ON PETITION FOR WRIT OF MANDAMUS

Argued November 5, 2013

JUSTICE BROWN delivered the opinion of the Court, in which CHIEF JUSTICE HECHT, JUSTICE

GREEN, JUSTICE JOHNSON, and JUSTICE BOYD joined.

JUSTICE BOYD filed a concurring opinion.

JUSTICE WILLETT filed a dissenting opinion, in which JUSTICE GUZMAN and JUSTICE DEVINE

joined.

JUSTICE DEVINE filed a dissenting opinion.

JUSTICE LEHRMANN did not participate in the decision.

This case arises from the State’s attempt to intervene in a civil action after the trial court had

already rendered final judgment. We must determine whether the court of appeals erred in holding

The State lacks standing to appeal the judgment and, if not, whether the State is entitled to mandamus

relief. We answer both questions in the negative, affirming the decision of the court of appeals and

denying the State’s petition for writ of mandamus.

I

Texas residents Angelique Naylor and Sabina Daly were married in Massachusetts in 2004.

A few years later, Naylor filed for divorce in Travis County. Because the two women were raising

a child and operating a business together, Naylor hoped to obtain a judgment addressing their

respective rights, some of which they had already settled in a suit affecting the parent-child

relationship (“SAPCR”).

The State of Massachusetts indisputably recognizes this same-sex marriage. Texas, however,

adheres to the traditional definition of marriage and does not recognize same-sex unions. Our

constitution unambiguously provides that “[m]arriage in this state shall consist only of the union of

one man and one woman.” TEX. CONST. art. I, § 32(a). And while other states allow same-sex

unions, Texas is not “required to give effect to any public act, record, or judicial proceeding of any

other State . . . that is treated as a [same-sex] marriage under the laws” of that state. 28 U.S.C. 

§ 1738C; see also TEX. FAM. CODE § 6.204(c)(1) (indicating Texas courts may not “give effect” to

such arrangements).

The new Texas Rules of Evidence (TRE) Where to find them online

TEX. R. EVID. (2015) (all of them)

The most recent update of rules governing the litigation process in Texas courts involves the Texas Rules of Evidence. The Texas Supreme Court re-promulgated the entire set of rules, mostly without substantives changes. They went into effect on April 1, 2015.

The new rules were duly published in the Texas Bar Journal, the official organ of the State Bar of Texas, but a more user-friendly version is available on-line on the Texas Judiciary's website. The entire set is available as a single pdf file (58 pages), which is text-searchable either online, or when downloaded and saved to hard disk. Here is the link:

-->  Texas Rules of Evidence (effective April 1, 2015) (pdf)
Link to -->  menu with links to all Texas Rules of Court 

Unfortunately, there are no hotlinks from the Table of Contents (reproduced below) and no internal hyperlinks (which have made the on-line Texas Statutes much more user-friendly).

http://www.txcourts.gov/rules-forms/rules-standards.aspx 

TEXAS RULES OF EVIDENCE

Effective April 1, 2015

TABLE OF CONTENTS 

ARTICLE I. GENERAL PROVISIONS
Rule 101. Title, Scope, and Applicability of the Rules; Definitions
Rule 102. Purpose
Rule 103. Rulings on Evidence
Rule 104. Preliminary Questions
Rule 105. Evidence That Is Not Admissible Against Other Parties or for Other Purposes
Rule 106. Remainder of or Related Writings or Recorded Statements
Rule 107. Rule of Optional Completeness

ARTICLE II. JUDICIAL NOTICE
Rule 201. Judicial Notice of Adjudicative Facts
Rule 202. Judicial Notice of Other States’ Law
Rule 203. Determining Foreign Law
Rule 204. Judicial Notice of Texas Municipal and County Ordinances, Texas Register
Contents, and Published Agency Rules

ARTICLE III. PRESUMPTIONS
Rule 301. [No Rules Adopted at This Time]

ARTICLE IV. RELEVANCE AND ITS LIMITS
Rule 401. Test for Relevant Evidence
Rule 402. General Admissibility of Relevant Evidence
Rule 403. Excluding Relevant Evidence for Prejudice, Confusion, or Other Reasons
Rule 404. Character Evidence; Crimes or Other Acts
Rule 405. Methods of Proving Character
Rule 406. Habit; Routine Practice
Rule 407. Subsequent Remedial Measures; Notification of Defect
Rule 408. Compromise Offers and Negotiations
Rule 409. Offers to Pay Medical and Similar Expenses
Rule 410. Pleas, Plea Discussions, and Related Statements
Rule 411. Liability Insurance
Rule 412. Evidence of Previous Sexual Conduct in Criminal Cases

ARTICLE V. PRIVILEGES
Rule 501. Privileges in General
Rule 502. Required Reports Privileged By Statute
Rule 503. Lawyer–Client Privilege
Rule 504. Spousal Privileges
Rule 505. Privilege For Communications to a Clergy Member
Rule 506. Political Vote Privilege
Rule 507. Trade Secrets Privilege
Rule 508. Informer’s Identity Privilege
Rule 509. Physician–Patient Privilege

2

Rule 510. Mental Health Information Privilege in Civil Cases
Rule 511. Waiver by Voluntary Disclosure
Rule 512. Privileged Matter Disclosed Under Compulsion or Without Opportunity to
Claim Privilege
Rule 513. Comment On or Inference From a Privilege Claim; Instruction

ARTICLE VI. WITNESSES
Rule 601. Competency to Testify in General; “Dead Man’s Rule”
Rule 602. Need for Personal Knowledge
Rule 603. Oath or Affirmation to Testify Truthfully
Rule 604. Interpreter
Rule 605. Judge’s Competency as a Witness
Rule 606. Juror’s Competency as a Witness
Rule 607. Who May Impeach a Witness
Rule 608. A Witness’s Character for Truthfulness or Untruthfulness
Rule 609. Impeachment by Evidence of a Criminal Conviction
Rule 610. Religious Beliefs or Opinions
Rule 611. Mode and Order of Examining Witnesses and Presenting Evidence
Rule 612. Writing Used to Refresh a Witness’s Memory
Rule 613. Witness’s Prior Statement and Bias or Interest
Rule 614. Excluding Witnesses
Rule 615. Producing a Witness’s Statement in Criminal Cases

ARTICLE VII. OPINIONS AND EXPERT TESTIMONY
Rule 701. Opinion Testimony by Lay Witnesses
Rule 702. Testimony by Expert Witnesses
Rule 703. Bases of an Expert’s Opinion Testimony
Rule 704. Opinion on an Ultimate Issue
Rule 705. Disclosing the Underlying Facts or Data and Examining an Expert About
Them
Rule 706. Audit in Civil Cases

ARTICLE VIII. HEARSAY
Rule 801. Definitions That Apply to This Article; Exclusions from Hearsay
Rule 802. The Rule Against Hearsay
Rule 803. Exceptions to the Rule Against Hearsay—Regardless of Whether the
Declarant Is Available as a Witness
Rule 804. Exceptions to the Rule Against Hearsay—When the Declarant Is Unavailable
as a Witness
Rule 805. Hearsay Within Hearsay
Rule 806. Attacking and Supporting the Declarant’s Credibility

ARTICLE IX. AUTHENTICATION AND IDENTIFICATION
Rule 901. Authenticating or Identifying Evidence
Rule 902. Evidence That Is Self-Authenticating
Rule 903. Subscribing Witness’s Testimony

3

ARTICLE X. CONTENTS OF WRITINGS, RECORDINGS, AND PHOTOGRAPHS
Rule 1001. Definitions That Apply to This Article
Rule 1002. Requirement of the Original
Rule 1003. Admissibility of Duplicates
Rule 1004. Admissibility of Other Evidence of Content
Rule 1005. Copies of Public Records to Prove Content
Rule 1006. Summaries to Prove Content
Rule 1007. Testimony or Statement of a Party to Prove Content
Rule 1008. Functions of the Court and Jury
Rule 1009. Translating a Foreign Language Document

 FINAL APPROVAL OF AMENDMENTS TO TEXAS RULES OF EVIDENCE

March 10, 2015 Texas Supreme Court Order

(pages 1-3 only, signature page and Texas CCA companion order omitted)

Link to full order here (pdf) 

Goodfriend v Travis County Clerk - Documents from Texas Same-Sex Marriage Licence Case

Goodfriend v Dana DeBeauvoir, Travis County Clerk

Same-sex Marriage License Case: Documents 

Screen capture of web page of Dana DeBeauvoir, Travis County Clerk,
with announcement of same-sex marriage license 

A more complete collection of trial court documents is now available from the Texas Supreme Court website and can be accessed through hyperlinks on the docket sheet for case number 15-0139. 

Below is a selection a screenshots of key documents (or portions thereof) with stickie notes. The additional documents were filed in conjunction with the couple's response to the Attorney General's petition for mandamus relief attacking the temporary restraining order signed by Judge Wahlberg that led to the issuance of the first same-sex marriage license in Texas by a county clerk. In their brief, the couple's attorneys argue that the supreme court mandamus proceeding initiated by Attorney General Ken Paxton is moot because the controversy became moot when the marriage license was granted and the marriage celebrated, and the case against the Travis County Clerk was dropped. They also argue that there is no proper basis for mandamus relief because there is an adequate remedy to declare the marriage void under the Texas Family Code. Mandamus relief is generally not available when there is an adequate remedy.
 
The additional documents also include an affidavit by Attorney Charles Herring Jr with his account of the events leading to issuance of first same-sex marriage license in Texas by Travis County Clerk, Dana DeBeauvoir. The gist of  it is that the TRO was granted after a contested hearing, rather than ex parte.

AFFIDAVIT OF ATTORNEY FOR SARAH GOODFRIEND AND SUZANNE BRYANT

IN THE TRIAL COURT

 Affidavit of Attorney Charles Herring Jr 

on events leading up to hearing, grant of TRO by Judge Wahlberg, 

and issuance of first same-sex marriage license in Texas   

Source: Supplemental Mandamus Record filed on 5/13/2015 in the Texas Supreme Court in the case brought by the Texas Attorney General seeking to invalidate the marriage license granted to Sarah Goodfriend and Suzanne Bryant. IN RE STATE OF TEXAS, No. 15-0139 (hyperlink to online docket). 

WAHLBERG ORDER FOR ISSUANCE OF MARRIAGE LICENSE 
TO SAME-SEX COUPLE

ORDER WAIVING 72-WAITING PERIOD FOR MARRIAGE CEREMONY

(sometimes called cooling-off period, though that would be a misnomer in this case, given the same-sex couple's long-standing desire to get married, and not being able to do so due to the legal impediment) 

After obtaining their marriage license armed with a court order, Sarah Goodfriend and Suzanne Bryant promptly dropped their case against the Travis County Clerk. 

NOTICE OF NONSUIT AFTER ISSUANCE OF LICENSE

Nonsuit in Travis County Same-Sex Marriage Licenses Case 

PETITION FOR TRO FILED BY GOODFRIEND AND BRYANT
(signature block and verification page omitted) 

Here is the link to the ---> Goodfriend v DeBeauvoir petition and application for temporary restraining order on the Travis County Clerk's website.  

Can one Texas court of appeals make law for another? ... Apparently so, under some circumstances

TEXAS SUPREME COURT TRANSFERS CASES AMONG THE INTERMEDIATE COURTS TO EVEN OUT THE DOCKETS, BUT THIS CAN CREATE A CONUNDRUM WHEN THE INTERMEDIATE COURTS ARE SPLIT ON AN UNSETTLED LEGAL ISSUE 

Transfer of cases among the courts of appeals combined with the rule that they be decided based on the precedents of the transferring court (officially called the "transferor court") represents yet another wrinkle in what even some justices acknowledge is a byzantine court system in Texas. See, e.g., Texas Supreme Court Justice Willett's Dissent in In re Reece, 341 SW 3d 360 (Tex. 2011).

The recent decisions of the Corpus Christi and Eastland Courts of Appeals in three credit card debt cases -- all transferred from the Second Court of Appeals in Fort Worth -- provide an apt illustration that docket equalization can be more than a merely administrative matter. Case transfers can have significant ramifications for the evolution of the common law as articulated through the decisions of the intermediate courts when the there is no controlling authority from the state's highest court.

• Rose Core v. Citibank (South Dakota, N.A.) No. 11-13-00040-CV (Tex.App.- Eastland [11th Dist.] February 27, 2015, motion for rehearing filed)(Op by Justice John M. Bailey)(case transferred from Second Court of Appeals in Fort Worth). Trial court: 362nd District Court in Denton County (Judge Bruce McFarling).  
• Marc R. Core v. Citibank, N.A., No. 13-12-00648-CV (Tex.App.- Corpus Christi, Edinburg [13th Dist.], April 9, 2015, no pet h.) (Opinion by Justice Rodriguez)(also on transfer from 2nd COA in Fort Worth). Trial court: 211th District Court in Denton County (Judge Lawrence Dee Shipman).  
• Scott Walker v. Citibank, N.A. No. 11-13-00042-CV (Tex.App.- Eastland [11th Dist.], Feb. 27, 2015, pet. to be filed under Cause No. 15-0287   (Op. by retired Justice Terry McCall, sitting by assignment) (case transferred from the 2nd Court of Appeals) Trial court: 342nd District Court in Tarrant County (Judge J. Wade Birdwell). 

All three were were transferred from the Second Court of Appeals in Fort Worth, but not to the same sister court. Marc R. Core v Citibank went to the Corpus Christi Court of Appeals, while the other two (Rose Core v Citibank and Scott Walker v Citibank) went to Eastland. One of the case had been appealed from Tarrant County (Fort Worth), while the other two originated in Denton County.

Both receiving courts were obligated to apply the caselaw of the Fort Worth Court of Appeals, rather than their own, but the state of the case law on the legal issue raised on those cases -- the viability of the account stated theory in the context of a defaulted credit card account, and the associated proof requirements -- was not entirely clear based on prior decisions of that court, not to mention settled.

PRIOR FORT WORTH CASE ON "ACCOUNT STATED" CLAIM BY CITIBANK 

There were two prior cases from the Fort Worth-based court, but neither of them "published" (i.e. published in the South Western Reporter), and in a prior case involving Citibank, the Fort Worth-based court of appeals had ruled that Citibank had not proven its case under the applicable evidentiary standard, and had accordingly reversed the judgment granted in the bank's favor. The court remanded for a new trial. See Morrison v. Citibank (South Dakota), N.A., 2008 W.L. 553284, 2008 Tex. App. Lexis 1692 (Tex. App. - Fort Worth 2008, no pet.) (mem. op.) (per curiam).

In Morrison, the Fort Worth-based court stated:

Assuming without deciding that account stated may be employed to collect credit card debt under Texas law, we nevertheless conclude that the evidence is too weak to support the trial court's judgment.

The court resolved the consumer's appeal of the judgment in favor of Citibank on sufficiency-of-evidence grounds and expressly declined to say whether it accepted account stated as a viable theory of recovery for credit card debt. The review was for factual sufficiency because the underlying judgment was entered after a bench trial.

In all the appellate cases involving the account-stated theory in the credit card debt context decided by other Texas courts of appeals, the creditor had won, and in most of these cases the creditor was Citibank. The bank was represented by the very same attorneys that also created the new precedent in Dallas upon which these cases rely as authority: Dulong v. Citibank (South Dakota), N.A., 261 S.W.3d 890 (Tex. App.–Dallas 2008, no pet.). Thus, the bank was in a position to cite its own prior ligation victories as legal authority.  See --> The Citibank Doctrine: Account Stated for Credit Card Debt Collection.

In Dulong, the Dallas Court of Appeals modified then-existing caselaw governing account-stated by approving it as a viable theory of collection of a financial debt incurred with a bank (as opposed to a debt incurred through purchase of goods or rendition and acceptance of services).

In subsequent cases, it stuck to its novel interpretation of the suit on account theory, and in one of those subsequent cases it overtly expressed its disagreement with the Fort Worth court's holding in Morrison, which was most directly on point in a case involving the same plaintiff. See Compton v. Citibank (S.D.), N.A., 364 S.W.3d 415, 419–20 (Tex. App.—Dallas 2012, no pet.) (citing Dulong, 261 S.W.3d at 894). On multiple occasion since, the Dallas court has cited its novel precedent for the proposition that Citibank was exempted from having to prove the underlying contract if it sought judgment on account stated, which only required proof of an agreement on the amount, rather than on credit terms, and held that such an agreement on the amount could be implied, i.e. it did not have to be articulated.

Both courts that heard the three Citibank account-stated cases transferred from Fort Worth ended up distinguishing the Morrison case decided by that court, and ended up following the Dallas Court of Appeals. They did so notwithstanding the express split between the Second and the Fifth, and the Dallas court's express rejection of the holding of the sister court in Fort Worth.

COURT OF APPEALS' SPAT OVER CITIBANK'S THEORY: DALLAS VS. FORT WORTH 

The Dallas court was adamant about not having to follow the prior decisions of a sister court, and was on solid ground in taking that position in the absence of binding Texas Supreme Court precedent. The transferree courts, by contrast, were required to follow the precedents of the transferor court.

Significantly, in the prior case in which Citibank had pushed its revamped account-stated theory in the Fort Worth Court of Appeals - Morrison v Citibank -- it had failed, and that was the very case that the Dallas Court of Appeals took issue with in Compton.

Did the transferree courts acknowledge taking sides with Dallas in the Metroplex split? 

In Marc Core v Citibank, the Thirteenth Court of Appeals acknowledged the dicey issue of precedent in a footnote, pointing out that Morrison was just a memorandum opinion, but also distinguished the cases on the facts. In the Morrison case, ten accounts were involved in a single lawsuit while in both Core v Citibank cases there was only one each. ("Factually, this appeal only involves a single credit card account.", at p. 16). But that seems a lame distinction, for the law would be identical regardless of whether there is only one account or several.

The distinction of Morrison on the basis that it involved reversal of a judgment rendered after a bench trial (at p. 16) sounds equally hollow, because the evidentiary standard for entitlement to summary judgment (in Core v Citibank) was higher, not lower. In Core, Citibank had to prove all substantive elements of its cause of action conclusively, while in Morrison - which involved resolution of all issues in a trial to the bench -- it only had to prove each element under the preponderance-of-the-evidence standard. Additionally, factual discrepancies and conflicts in the evidence can be resolved by the fact finder at trial, while they preclude summary disposition if they concern material issues of fact in the summary judgment context.

As for the issue whether Morrison was binding on it, the Corpus Christi court said the following about the Fort Worth court's opinion:

The fact that Morrison v. Citibank (South Dakota), N.A., is a memorandum opinion from the Second Court of Appeals is significant because this case was transferred to us from the Second Court of Appeals in Fort Worth pursuant to an order of the Texas Supreme Court under the authority of section 73.001 of the Texas Government Code. See No. 2-07-00130-CV, 2008 WL 553284, at *1–3 (Tex. App.—Fort Worth Feb. 28, 2008, no pet.) (mem. op.) (per curiam); see also TEX. GOV’T CODE ANN. § 73.001. In accordance with rule 41.3 of the Texas Rules of Appellate Procedure, we are required to follow the precedent of the Fort Worth Court of Appeals “unless it appears that the transferor court itself would not be bound by that precedent.” TEX. R. APP. P. 41.3.

The jurisprudentially most significant issue in all of these cases -- transferred or otherwise -- is the legal issue of whether account stated is a proper theory for collection of a financial debt owned to a bank, rather than to a merchant and seller of goods or services.

Although the Corpus-based court cites Morrison v Citibank for the elements of account stated (along with recent cases from other courts including Dulong), the Fort Worth Court of Appeals had reserved judgment on that issue.

A DOCTRINAL QUESTION, NOT MERELY ONE OF EVIDENTIARY SUFFICIENCY 

The matter of whether "account stated" can serve as an alternative legal theory to breach of contract in a suit to recover a credit card debt, which is necessary based on a contract because statutory law requires it, is a quintessential matter of substantive law, rather than merely one of fact and sufficiency of the evidence, although the nature of the theory obviously also dictates the type or proof needed to satisfy its essential elements.

In Morrison, the Fort Worth Court of Appeals stated:

Assuming without deciding that account stated may be employed to collect credit card debt under Texas law, we nevertheless conclude that the evidence is too weak to support the trial court's judgment.

The Fort Worth Court of Appeals thus resolved Morrison's appeal of the judgment in favor of Citibank on factual sufficiency grounds and expressly declined to determine whether it accepted account stated as a viable theory of recovery for credit card debt.

It also pointed out, citing Neil v. Agris, 693 S.W.2d 604 (Tex.App.-Houston [14th Dist.] 1985, no writ), which the Dallas Count had also cited in Dulong, that Citibank had not established the reasonableness of the price in the absence of an agreement:

[Affiant] Guenther did not testify that the prices charged were usual, customary, and reasonable, a potential alternative to proving the second element. See Neil, 693 S.W.2d at 605.

In other words, the Fort Worth Court of Appeals adhered to the precedents pre-dating the Dallas Court's Dulong decision. It relied on the case law that treats account stated and open account as claims arising from transactions involving the sale of goods or services by merchants. Under those theories, the plaintiff has the burden to prove that it provided goods or services, and the price/charges were either agreed to by the parties, or were customary and reasonable as established by other evidence, absent an agreement.

Those requirements still apply in a suit on sworn account when the petition does not strictly conform with the requirements of Rule 185, or when the Defendant files a sworn denial and thus neutralizes the evidentiary benefits of Rule 185. --> Credit card debt suit cannot be brought as a sworn-account.

CAN ONE COURT OF APPEALS SET BINDING PRECEDENT FOR ANOTHER?

It is probably fair to say that the courts in Corpus Christi and Eastland were not bound by Morrison, and that they did establish the precedent that the Fort Worth court was not prepared to set in Morrison, even though the Fort Worth court could have done so, -- one way or the other.

Does that mean that the Fort Worth court is bound by the holding of the Thirteenth and Eleventh Courts of Appeals regarding account stated as a proper theory for credit card debt collection in the transferred case? Apparently so.

But will the Fort Worth court accept the legitimacy of another court acting in its stead when the court had chosen not to decide whether a credit card debt collection case is properly brought as an "account stated" claim, and had save that issue for another day? Particularly when considering that the Dulong case, on which the subsequent account-stated cases rely as authority, is doctrinally flawed and creates conflict with long-standing caselaw on open account and account stated outside the context of credit card debt collection.

It remains to be seen.

CASES INVOLVING ACCOUNT STATED IN THE CREDIT CARD DEBT CONTEXT

CORPUS CHRISTI COURT OF APPEALS (ON TRANSFER FROM FORT WORTH)

[Marc] Core v. Citibank, N.A., No. 13-12-00648-CV (Tex.App.- Corpus Christi, Edinburg [13th Dist.], April 9, 2015, no pet h.) (Opinion by Justice Rodriguez)

EASTLAND COURT OF APPEALS (ON TRANSFER FROM FORT WORTH) 

[Rose] Core v. Citibank (S.D.), N.A., now known as Citibank, N.A.,  No. 11-13-00040-CV (Tex.App.- Eastland [11th Dist.] February 27, 2015, motion for rehearing filed )(Op by Justice John M. Bailey)(case transferred from Second Court of Appeals in Fort Worth)

Walker v. Citibank, N.A., No. 11-13-00042-CV, 2015 WL 1004395, at *3 (Tex.App.- Eastland [11th Dist.], Feb. 27, 2015) (Op. by retired Justice Terry McCall, sitting by assignment) (case transferred from the 2nd Court of Appeals) (concluding that “an account[-]stated cause of action is appropriate for a suit to collect credit card debt” and setting out the elements of an account-stated claim)

FORT WORTH COURT OF APPEALS

Morrison v. Citibank (S.D.) N.A., No. 02-07-00130-CV, 2008 WL 553284, at *1 (Tex. App.—Fort Worth Feb. 28, 2008, no pet.) (mem. op.) (per curiam) (judgment in favor of Citibank on account stated theory reversed in suit involving ten credit card accounts).

DALLAS COURT OF APPEALS

DuLong v. Citibank (S.D.), N.A., 261 S.W.3d 890, 893 (Tex. App.—Dallas 2008, no pet.)

Compton v. Citibank (S.D.), N.A., 364 S.W.3d 415, 419–20 (Tex. App.—Dallas 2012, no pet.) (citing DuLong, 261 S.W.3d at 894)(follow-up case stating disagreement with Fort Worth court's opinion in Morrison).

Hays v. Citibank (S.D.), N.A., No. 05-11-00187-CV, 2012 WL 929673 (Tex.App.-Dallas Mar. 16, 2012, no pet. h.) (mem. op.)

Owusu v. Citibank (S.D.), N.A., No. 05-10-00175-CV, 2011 WL 2465475 (Tex.App.-Dallas June 22, 2011, no pet.) (mem. op.)

Moir v. Citibank (S.D.), N.A., No. 05-09-00641-CV, 2010 WL 2574212 (Tex. App.-Dallas June 29, 2010, no pet.) (mem. op.)

AUSTIN COURT OF APPEALS

Singh v. Citibank (S.D.), N.A., 03-10-00408-CV, 2011 WL 1103788 (Tex.App.-Austin Mar. 24, 2011, no pet.) (mem. op.)

Damron v. Citibank (S.D.), N.A., No. 03-09-00438-CV, 2010 WL 3377777 (Tex.App.-Austin Aug. 25, 2010, pet. denied) (mem. op.)

SAN ANTONIO COURT OF APPEALS 

Rodriguez v. Citibank, N.A., No. 04-12-00777-CV, 2013 WL 4682194 (Tex. App.—San Antonio Aug. 30, 2013, no pet.) (mem. op.)

WACO COURT OF APPEALS 

McGrew v. Citibank (S.D.), N.A., No. 10-07-00343-CV, 2009 WL 1693473 (Tex.App.-Waco 2009, no pet.) (mem. op.)

HOUSTON COURT OF APPEALS

Busch v. Hudson & Keyse, LLC, 312 S.W.3d 294, 299 (Tex. App.—Houston [14th
Dist.] 2010, no pet.)

EL PASO COURT OF APPEALS

Eaves v. Unifund CCR Partners, 301 S.W.3d 402 (Tex. App.—El Paso 2009, no pet.)