February 24, 2024
Dear Friends:
This is not really an error preservation ruling, but the Supreme Court did recently remind us that “‘[w]hile it is certainly the better practice to present all arguments to a court of appeals before seeking mandamus in” the Supreme Court, “‘the failure to do so is not a failure to preserve error as it ordinarily would be in an appeal.’” Note: this case did not say that you could raise issues in the Supreme Court you did not raise in the trial court. :-):
Relying on Texas Rule of Appellate Procedure 55.2(f), Cobalt argues that the Insurers did not preserve this argument because they did not raise it in their mandamus petition in the court of appeals. Rule 55.2(f) prohibits a “petitioner” from raising in its “brief on the merits” any “additional issues or points or chang[ing] the substance of the issues or points presented in the petition.” Tex. R. App. P. 55.2(f). This rule governs briefs on the merits in appeals, and its reference to the “petition” refers to a petition for review, not a petition for writ of mandamus. See Tex. R. App. P. 55.2(f). The comparable rule for mandamus petitions does not contain the same language, because mandamus proceedings are original proceedings and are not subject to the same preservation and presentation requirements as appeals. See [*20] Tex. R. App. P. 52.3(f); In re AIU Ins. Co., 148 S.W.3d 109, 121 (Tex. 2004) (orig. proceeding) (“While it is certainly the better practice to present all arguments to a court of appeals before seeking mandamus in this Court, the failure to do so is not a failure to preserve error as it ordinarily would be in an appeal.”). We will thus consider the Insurers’ arguments on this issue.
In re Ill. Nat’l Ins. Co., No. 22-0872, 2024 Tex. LEXIS 158, at *19-20 n.12 (Feb. 23, 2024)
Y’all take good care and have a great weekend.
Yours, Steve Hayes
shayes@stevehayeslaw.com; 817/371-8759; www.stevehayeslaw.com