On Jan. 7, Austin’s 3rd Court of Appeals dismissed on procedural grounds the state of Texas’ appeal of a final divorce decree that a Texas trial court granted to two women married in Massachusetts. Justice Diane M. Henson ‘s eight-page opinion in State of Texas v. Angelique S. Naylor and Sabina Daly was joined by Chief Justice J. Woodfin “Woodie” Jones and Justice David Puryear . The panel concluded that it did not have jurisdiction because the state was not a party of record and lacked standing to appeal. “Having determined that we lack subject-matter jurisdiction over this appeal, we express no opinion on the remaining issues raised by the state,” the court wrote. James “Jody” Scheske , a partner in Akin Gump Strauss Hauer & Feld in Austin who represents Naylor, welcomes the decision. “Every once in a while, the good guys win,” he says. Bob Luther , an Austin solo who represents Daly, did not return a telephone call seeking comment. Last April, the Texas Office of the Attorney General filed the appeal on the state’s behalf. Lauren Bean, deputy communications director for the OAG, writes in an e-mail, “The Texas Constitution and statutes are clear: only the union of a man and a woman can be treated as a marriage in Texas. The court’s decision undermines unambiguous Texas law. The Office of the Attorney General will weigh all options to ensure that the will of Texas voters and their elected representatives is upheld.” Scheske says the 3rd Court’s opinion represents “a civil procedural ruling and not a civil rights ruling,” so it likely won’t impact the other same-sex divorce matter he’s handling, In the Matter of the Marriage of J.B. and H.B. In a motion, Scheske’s client J.B., a Dallas man trying to divorce his same-sex partner, sought en banc reconsideration of the 5th Court of Appeals’ Aug. 31, 2010, ruling that sided with the state and concluded that a same-sex couple married in Massachusetts cannot get divorced in Texas. But on Dec. 8, 2010, a three-justice panel of the Dallas appeals court denied J.B.’s motion and remanded his case to the trial court with instructions to dismiss it for lack of subject-matter jurisdiction. The 5th Court wrote that the trial court “erred by ruling that article I, section 32(a) of the Texas Constitution and section 6204 of the Texas Family Code violate the Equal Protection Clause of the Fourteenth Amendment.” Scheske says he plans to appeal J.B.’s case to the Texas Supreme Court.
Coverage Questioned
On Dec. 28, 2010, a professional liability carrier filed Darwin Select Insurance Co. v. Laminack, Pirtle & Martines, et al., a federal suit seeking a declaratory judgment that it doesn’t have to “defend or indemnify” Houston’s Laminack, Pirtle & Martines and two of its partners from a legal malpractice suit. Laminack, Pirtle and partners Richard Laminack and Thomas Pirtle are among defendants in the legal malpractice suit, RX.com Inc., et al. v. John M. O’Quinn & Associates PLLC d/b/a The O’Quinn Law Firm, et al., which was filed in state district court in Houston on Oct. 11, 2010, but removed by the defendants to federal court on Nov. 10, 2010. A motion filed by the RX.com defendants seeking to move the legal malpractice suit back to state court is pending. In their petition in RX.com, the company and Joe S. Rosson, RX.com’s founder and former CEO/president, allege they hired the defendants to represent them in a federal antitrust suit against pharmacy benefit managers, but the antitrust suit wasn’t filed before the statute of limitations had expired. In answers filed in November 2010 before the suit was removed to federal court, each of the Rx.com defendants denied the allegations. [See "Jamail Represents Plaintiffs Suing O'Quinn's Former Firm, Others," Texas Lawyer, Nov. 22, 2010, page 4.] In Darwin Select, the insurer alleges it should not have to provide coverage because the alleged wrongful act upon which the underlying malpractice suit is based took place before June 2008, when Darwin Select began providing professional liability insurance to Laminack, Pirtle. Darwin Select also alleges in the complaint that the firm, Laminack and Pirtle failed to disclose any information about the potential insurance claim until after RX.com was filed in October 2010. “The Law Firm waited until October 2010, one day after the Underlying Plaintiffs actually filed their malpractice lawsuit, to give Darwin notice of what the Law Firm referred to as a ‘potential claim,’ ” the insurer alleges in the complaint. Laminack, managing partner of Laminack, Pirtle, says the firm didn’t exist until after the statute of limitations at issue in the underlying malpractice suit had run, so he wonders why he, Pirtle and the firm are defendants. He says, “ Everything happened before my firm ever existed. And I’m sure my insurance company is looking at it the same way, saying, ‘What are we doing in this?’ ” Darwin Select filed the coverage suit in the U.S. District Court for the Southern District of Texas in Houston.
