Missouri Pacific R.R. v. Whitehead ( 1993 )

OPINION ON REHEARING

In their motion for rehearing, Appellants argue that while the case should be remanded, it should be remanded for a new trial on the issue of liability as well as damages. The argument rests on the difference in State and Federal appellate procedural rules.

A case may be remanded for a new trial in Texas to determine unliquidated damages alone if “liability issues are not contested.” Tex.R.App.P. 81(b)(1). By statute, a Federal “court of appellate jurisdiction may ... require further proceedings to be had as may be just under the circumstances.” 28 U.S.C.A. § 2106 (West 1982). There is no dispute that the damages are unliquidated, and liability was, and still is, contested. It is also true that Appellee chose Texas as the forum for this suit, and thereby willingly submitted to be bound by the procedural rules of this State in the adjudication of his federal substantive rights. Thus, it would usually be proper to remand this case under Texas Rule of Appellate PROCEDURE 81(b)(1) for a new trial on the issues of liability and damages.

However, it is the opinion of this Court that the rights of the railroad employees to not have to relitigate liability issues under these circumstances, by federal interpretation, has become bound up with substantive rights and is “too substantial a part of the rights accorded by the Act to permit it to be classified as a mere ‘local rule of procedure’.” Dice v. Akron, Canton & Youngstown R. Co., 342 U.S. 359, 363, 72 S.Ct. 312, 315, 96 L.Ed. 398 (1952).

Appellant’s motion for rehearing is denied.

RAMEY, C.J., not participating.