Tuesday, June 10, 2008

Update: Medina v. Tina Benkiser, Texas GOP (Tex.App.- Houston [1st Dist.] 2008)

Subsequent history: Medina v. Benkiser, 262 S.W.3d 25 (Tex. App.--Houston [1st Dist.] 2008, no pet.) ("Medina I").

Appeal of attorney's fees award after first appeal: Medina v. Benkiser II
(Tex.App.- Houston [1st Dist.] Dec. 31, 2009
)(Hanks)(plenary jurisdiction)(trial court did not have authority to modify judgment after appeal and add an award of attorney's fees; prior appeal was not interlocutory, modified judgment found void)
Our opinion and judgment in Medina I constituted the final resolution of the controversy between the parties, and the trial court lacked plenary power to award attorney's fees to appellees. By affirming the trial court's judgment, our judgment essentially adopted the judgment of the trial court dismissing the case for lack of jurisdiction. Because the trial court did not award attorney's fees to the appellees in its judgment--and the appellees did not raise this failure to award fees as an issue in Medina I--our opinion and judgment in Medina I closed the door on the possibility of the appellees recovering their attorney's fees in this case.We sustain appellants' first issue and hold that the trial court lacked plenary power to modify the judgment and award appellees' attorney's fees.
Before Justices Keyes, Alcala and Hanks
01-08-00777-CV Debra Medina, Mallory Miller, Jr., Dustan Costine, Chad Creighton, Richard Wyatt and Kay Fisher v. Tina Benkiser and The Republican Party of Texas
Appeal from County Civil Court at Law No 4 of Harris County
Trial Court Judge:
Hon. Roberta A. Lloyd

Court of Appeals abstains from involvement in internal Republican Party squabble; issues parsimonious instant opinion denying mandamus relief against temporary restraining order (TRO) granted by retired judge.

In Re Tina Benkiser, Republican Party of Texas
(Tex.App.- Houston [1st Dist.] June 9, 2008) (Jennings) (election mandamus on eve of party convention denied b/c TRO set for contested hearing same day)
Opinion by Justice Terry Jennings
Panel composition: Justice Tim Taft, Justice Terry Jennings and Justice Jane Nenninger Bland
Full case style: In re Tina Benkiser, Chairman, Republican Party of Texas, and The Republican Party of Texas
Appeal from County Civil Court at Law No 4 of Harris County
Trial court judge: Visiting Judge Tom Sullivan
Presiding judge: Hon. Roberta Ann Lloyd (who was out of town at the time TRO was granted, but returned in time to take up the matter same day court of appeals denied relief and vacated the temporary restraining order)

Original Proceeding on Petition for Writ of Mandamus (1)


Relators, Tina Benkiser, Chairman, Republican Party of Texas, and the Republican Party of Texas, have filed a petition for a writ of mandamus challenging a June 4, 2008 temporary restraining order, signed by the Honorable Tom Sullivan, in favor of real parties in interest, Debra Medina, Mallory Miller, Jr., Dustan Costine, Chad Creighton, Richard Wyatt, and Kay Fisher.

In In re Newton, the Texas Supreme Court determined that mandamus relief was available to vacate a temporary restraining order based on the fact that temporary restraining orders are generally not appealable and that there was no adequate remedy by appeal. 146 S.W.3d 648, 652-53 (Tex. 2004).

In support of its holding, the supreme court noted that by granting the temporary restraining order after the election in question had begun and by setting the temporary injunction hearing the day after the election was over, the district court had "essentially made a final, non-appealable adjudication affecting" the parties' rights to participate in the election. Id. at 652.

Here, because the temporary restraining order evidences that a hearing on the real-parties-in-interest request for a temporary injunction has been set for June 9, 2008 at 3:00 p.m., relators have failed to establish the lack of an adequate remedy by appeal. Accordingly, we deny the petition for a writ of mandamus.


Panel consists of Justices Taft, Jennings, and Bland.

1. The underlying lawsuit is styled Medina v. Benkiser, No. 919790 (County Civil Court at Law No. 4, Harris County).

Note: On its face, the opinion was issued per curiam, but the court's web site shows Terry Jennings as its author. All the justices are Republicans. Judge Lloyd has since dissolved the TRO that was challenged by petition for writ of mandamus, reportedly on jurisdictional grounds.