Counsel for the plaintiffs in BP v. Marshall filed unusual motions for rehearing after the Texas Supreme Court reversed the judgments of the courts below awarding substantial damages for fraud. See my discussion of the Supreme Court’s decision here. The Marshalls’ attorneys’ motion for rehearing accuses the court of engaging in “de novo review of a jury finding,” exceeding the court’s constitutional authority, violating the Marshalls’ constitutional right to a jury trial, ignoring uncontradicted expert testimony, and ignoring its own prior precedent. The motion calls the court’s reasoning “disingenuous.” The Vaquillas attorneys’ motion for rehearing says that “the decisional process has gone awry,” and the court “has not decided, or even recognized, the main issue in the Vaquillas-Wagner case.” From the Vaquillas motion for rehearing:
“The Opinion resolves the BP-Marshall dispute on a legal insufficiency point, but the Opinion never uses the phrase ‘standard of review,’ never alludes to the standard of review, and never undertakes to apply one.”
“Perhaps the Court has in mind an explanation — maybe even a devastating explanation — for making the evidence that supports the verdict all vanish. Very well, then, but the Opinion ought to opine on these things, rather than leaving the world wondering.”