I saved back one case from Friday’s order list for a separate post.
- Evanston Ins. Co. v. ATOFINA Petrochemicals, Inc., No. 03‑0647.
I wrote about this case in February, when the Court — on rehearing — changed its judgment from 9-0 in favor of the insurer to a new judgment that largely favored the insured.
After that decision, both sides were dissatisfied and filed motions for rehearing, and Friday the Court issued a revised opinion while granting one of those motions for rehearing. (( I haven’t done a line-by-line comparison, but the email sent by Court’s public-information officer identified only two minor changes made by Friday’s substituted majority opinion. According to that email, the reissued opinion changes the following on page 2:
We affirm the judgment of the court of appeals to the extent that it resolves the coverage dispute in favor of the additional insured, and to the extent that it binds the insurer to the amount recited in the settlement agreement, but we reverse the court of appeals’ judgment regarding damages and attorney’s fees under article 21.55
and render judgment thatbecause the additional insured is not entitled to recovery of such damages and fees.
And it also changes the disposition in the last paragraph of the opinion:
We reverse the court of appeals’ judgment permitting ATOFINA to recover attorney’s fees and damages under article 21.55 of the Texas Insurance Code
and render judgment thatbecause ATOFINA is entitled to no such damages or fees. We remand the case to the trial court for further proceedings on ATOFINA’s other claims for attorney’s f
)) This is the revised majority opinion.
Here is the procedural point that warrants a separate post: This was a motion for rehearing filed after the Court’s grant of a first motion for rehearing — making this a second motion for rehearing.
Why is that significant? Texas Rule of Appellate Procedure 64 governs motions for rehearing in the Texas Supreme Court. Unlike the rule applicable in lower courts, this one has a provision that says: “64.4 Second Motion. The Court will not consider a second motion for rehearing.”
I have always found that rule too simple for its own good because it overlooks the Court’s two-step review process, in which the Court’s decision whether to review a case is often made months or even years apart from its decision how to resolve a case. While it makes sense to prevent parties from piling on additional motions for rehearing in seriatim after a merits decision — the process must at some point end — it would make less sense to prevent a party from seeking rehearing on the merits merely because the Court also had to be prodded to take the case through a motion for rehearing at the petition stage.
Out of an abundance of caution, I have always read the rule to prevent such a motion, but I would understand if the Court were (either through decision or rule-making) to clarify that the bar on “second motions for rehearing” applies separately to “motions for rehearing of a petition” and to “motion for rehearing of a cause.” Such a distinction, while somewhat metaphysical, would make good practical sense.
But the procedural posture of Evanston v. ATOFINA does not fit even that more liberal reading of the rule. Here, the Court issued a decision on the merits. One party was dissatisfied and filed a motion for rehearing, which was granted. Then the Court issued a second merits decision. And the parties filed yet more motions for rehearing. One of which was … granted. (( At first, I thought the Court might have denied both motions or might even have granted the motion by Evanston, which itself had not previously filed any motion for rehearing. But the Court’s order list says that ATOFINA’s motion was granted. The order list does not suggest that the Court considered ATOFINA’s motion to be untimely or barred by Rule 64.4. ))
As I said, this is just a procedural observation. But it raises an important question — when can parties file a motion for rehearing under Rule 64.4 and when are they barred doing so?
Some clarification of Rule 64.4 might be on the agenda for the Court’s next rules attorney.