Bush Library Up In the Air- 5th Circuit tosses out judgment

[Horse Hockey]

The Fifth Circuit last Friday VACATED the judgment awarding title to the University Gardens Condominium to Peruna Properties, Inc.

It looks like it is back to square one.

[Stallion]

Is everybody at the Olympics? This has made nary a ripple in the news media. Here's a link to the 5th Circuit website. You can view the 5th Circuit opinion which is presently the 2nd listed opinion in the index in the middle of the page.

http://www.ca5.uscourts.gov/

[Stallion]

basically they are saying that since the plaintiffs are no longer asserting the federal court claims that formed the basis of the federal court jurisdiction the case should be remanded to determine whether the federal district court should even accept the case in the first place or instead remand the case to the State District Court for determination of the issues which now strictly involve Texas state law not Federal Law. The Federal District Court does retain some discretion to retain the case nonetheless but they will have to apply certain Court approved factors in determining whether the case should be decided by state or federal court. BTW this was a very pro Republican panel with all 3 judges conservative Republican appointees.

[expony18]

thanks for the link, interesting stuff... i have a feeling how this is going to turn out

[Horse Hockey]

Actually, to be fair to the media (why, I have no idea) the appeal was set for oral argument for Monday, July 7, but was only removed from that calendar on June 26th. Also, the opinion was signed on Friday July 11th, but it was only sent out to those non-parties on the 5th Circuit email list sometime shortly after noon today.

Note that the opinion vacated the summary judgment granting title to Peruna and then said the federal district court needed to consider the issues of comity in deciding whether to remand. While remand of state law issues under supplemental jurisdiction provides some discretion, couching this issue as "comity" is a strong hint at what is expected. The way the opinion is written laying out only reasons that would support remand seems to indicate to me that they expect the district court to remand.

Also note that the two members of the panel who participated in the opinion were George W appointees (in 2003 and 2007), as is the member who recused herself. The strength of the appellants' appeal position on proof of title seems indicated by surviving summary disposition of this 2006 appeal, having been placed on the oral argument calander and the decision to vacate the opinion, even though the district court had jurisdiction.

The original federal district judge who authored the opinion granting summary judgment has retired since the opinion, so it will go to the new federal district judge to decide the remand issue. If the district court decides against remand, it will have to rule on the summary judgment (again) unless Peruna lets the case go to trial. Since the original summary judgment motion was filed immediately after the removal to federal court and was heard in a matter of weeks, it probably would be next year before the case came on for trial in federal court.

It will go to Judge Hoffman in state court if (when) there is a remand.

[couch 'em]

Can you guys translate this into english?

Who is helped, who is hurt, and who is going to win?

[Stallion]

procedural issue concerning which Court is likely to throw his case out quite frankly.

[Horse Hockey]

The court of appeals used a procedural rule to avoid having to address whether the judgment finding title to the property belonged to Peruna was proper. [hot potato]. It just vacated the judgment which means it is as if it never existed.

Result: The title issue (i.e, does Peruna own the entire property or do Vodicka and Tafel own an undivided interest in all of it) is not determined. This means Peruna does not know that it has title and now V and T could win on the title issue in trial.

Since the court of appeals noted correctly that the remaining issues are "pending" in state court, that means the case has not been resolved. If remanded, that means the decisions on the title issues will be made in state court which has the case set for trial in late 2008. In state court there is an appeal process, which normally takes a year or more in the state court of appeals. As the federal court of appeals noted, the appeal raises unresolved issues of Texas law. If a state court appeal makes it into the Texas Supreme Court that can add years (1 to 3 or more).

Result: From Peruna's point of view, it was very very close to having the title issue in its favor over and done with, if it WON the appeal in federal court. That would mean that as owners of the land (possibly subject to the Methodist conference disapproval this weekend) it could exclude Vodicka and Tafel from being on the land and could convey it or give a long lease to it to the Library foundation. And, construction of the library could start with the design using the UG property as part of the location. Not now, and probably not for several years, assuming Peruna ultimately prevails on the title issue which is not a sure thing from the issues that were raised in the district court. Those pleadings are available at the district clerk's office or on PacerNet. Interesting read.

[RE Tycoon]

Interesting read.

I guess that's in the eye of the beholder

[EastStang]

However, I think this probably means that the lower Court has to remand it back to State Court which has pretty much already told Vodicka to go packing, so as Stallion says, it just means that the Court was pretty much saying this doesn't belong here, send it to the State Court where it belongs so that they can throw it out.

[Horse Hockey]

Actually, the 5th Circuit opinion's recitation of the history of the case shows that the state court judge never got to rule on the title issue since the case was removed to federal court before the state court judge held the hearing on the title issue. There is nothing I've seen or read to indicate how that state judge was going to rule on this.

As the 5th Circuit opinion noted, the title issue is going to involve many of the issues that are already in the case in state court due to the remand of the remainder of the case in 2007.

Also, the state court judge at the time of the removal to federal court was subsequently voted out of office in the last state judicial election when all the incumbent judges lost. There is a new judge (Hoffman) on this case.

If you have read the DMN since the other part of the case was remanded back to state court in 2007, this state court judge (Hoffman) has allowed the case to proceed with discovery and the case is set for trial in October 2008, so it may be wishful thinking that it will be "thrown out."

STAY TUNED.

[Pony Soup]

They should move the site over across 75 where Jacks was (might have to knock down an office building or two but hey, George likes Jack). plus then the traffic is not all over campus. AND we can tie these guys up in court until theyre out of money...ha

[MrMustang1965]

That area where University Gardens was would sure make a nice baseball park.

[Pony Soup]

That area where University Gardens was would sure make a nice baseball park.

A+

[OC Mustang]

Do you all think that Vodicka would still be pitching this fit if indeed a baseball park was the primary objective of this property?

I can surmise all by myself that the answer is yes b/c of money, but in your estimation, is it all about the money, or is he irked about the project concept being a Bush library and policy institute?

And if you all were laying odds, how would you handicap the Library's chances vis-a-vis the Methodist 'Battle of the Paper Clips', and how would you handicap chances vis-a-vis this legal entanglement?

Is this thing going to wind up in court in perpetuity? (play on words intended)