In a Rare Move, Texas Supreme Court Withdraws Its Own Opinion and Finds for Shipley Snell Client

In what has been described by Texas appellate gurus as “a rare move”¹, and the Court’s “most unusual disposition,”² Shipley Snell convinced the Texas Supreme Court to withdraw its own opinion, resulting in a total victory for Shipley Snell’s client, Frank Alattar.

Mr. Alattar was sued over an alleged agreement regarding property in Washington County. Throughout the litigation, Shipley Snell attorneys maintained that the suit against Alattar was barred by the statute of frauds. The trial court declined to apply the statute of frauds and rendered judgment against Alattar. Shipley Snell appealed on its client’s behalf, and in 2010, the Fourteenth Court of Appeals held that the statute of frauds did apply and rendered judgment that the plaintiff take nothing in his claim against Alattar.

The plaintiff filed a petition for review in the Texas Supreme Court. In 2011, the Texas Supreme Court, without hearing any oral argument, issued an unsigned, per curiam opinion reversing the lower court’s judgment.

Even though motions for rehearing in the Texas Supreme Court are rarely granted, Shipley Snell and its client firmly believed that their statute of frauds argument was correct. Shipley Snell filed a motion for rehearing, pointing out, among other things, that the Court had relied heavily upon, but misconstrued, its own authority from 1851.

In an extremely uncommon move, the Texas Supreme Court granted Shipley Snell’s motion for rehearing. Even more unusually, two months later, the Court withdrew its earlier opinion in its entirety and dismissed the plaintiff’s petition for review as improvidently granted. This had the effect of reinstating the court of appeals’ opinion, a total victory for Shipley Snell’s client.

¹Tx Supreme Court does about-face in case involving the statute of frauds – Ganim v. Alattar (Tex. 2011), Houston Court of Appeals Opinion Un-Reversed, available at houston-courts-and-cases.blogspot.com (Mar. 30, 2012).

²The original Texas open-beaches holding survives rehearing – three other cases decided – six new grants, available at www.scotxblog (Mar. 30, 2012).