The Texas Supreme Court issued six merits decisions with today’s orders list, ordered that a previously granted petition had been improvidently granted, and chose three new cases to be argued in December.

The Robinson asbestos case

Barbara Robinson v. Crown Cork & Seal Co., No. 06-0714 (DB). Divided 6-2 on the judgment, the Texas Supreme Court held that a provision in House Bill 4 that retroactively changed the law applicable to a previously accrued asbestos claim could not constitutionally be applied to Robinson. Writing for five Justices in the majority, Justice Hecht framed the test:

No bright-line test for unconstitutional retroactivity is possible. Rather, in determining whether a statute violates the prohibition against retroactive laws in article I, section 17 of the Texas Constitution, courts must consider three factors in light of the prohibition’s dual objectives: the nature and strength of the public interest served by the statute as evidenced by the Legislature’s factual findings; the nature of the prior right impaired by the statute; and the extent of the impairment. The perceived public advantage of a retroactive law is not simply to be balanced against its relatively small impact on private interests, or the prohibition would be deprived of most of its force. There must be a compelling public interest to overcome the heavy presumption against retroactive laws.

Applying that test, the Court concluded that the benefits of this law were not compelling enough to override Robinson’s interest in her claim:

It is tempting to think that the real burden of Chapter 149 on the Robinsons and other plaintiffs in their shoes will be light compared to the benefit to Crown, its current and former employees, and the State. The Robinsons’ case, and most others like it, involves many defendants and large settlements funded from many pockets. The impact of Chapter 149 on individual cases may be slight, relative to the cumulative impact on Crown without Chapter 149. But we think that an important reason for the constitutional prohibition against retroactive laws is to preempt this weighing of interests absent compelling reasons. Indeed, it is precisely because retroactive rectification of perceived injustice seems so reasonable and even necessary, especially when there are few to complain, that the constitution prohibits it.

Justice Medina delivered a concurring opinion. Rather than accepting the Court’s balancing test, he would have analyzed whether this was a vested right, and would have concluded that it was.

Justice Willett delivered a concurring opinion, in which Justice Lehrmann joined. The opinion discusses some of the broader policy issues involved in the balancing test, with some high culture references (including one that boldly goes to the distant future).

Justice Wainwright delivered a dissenting opinion, in which Justice Johnson joined. The dissenters would have concluded that the retroactive law was permissible. (Justice Guzman did not sit on this case)

But Government Code § 311.034 can be applied retroactively

University of Texas Southwestern Medical Center at Dallas v. The Estate of Irene Esther Arancibia, et al., No. 08‑0215 (DB)

The background, which should be familiar to those who litigate against (or for) government units:

In 2004, we concluded that the notice requirements were mandatory, rather than jurisdictional, and that there was no interlocutory appellate jurisdiction over an order that denied a governmental unit’s jurisdictional plea based on a claimant’s failure to provide notice. See Univ. of Tex. Sw. Med. Ctr. v. Loutzenhiser, 140 S.W.3d 351, 365-66 (Tex. 2004). Shortly thereafter, the Legislature amended the Government Code to provide that “[s]tatutory prerequisites to a suit, including the provision of notice, are jurisdictional requirements in all suits against a governmental entity.” Tex. Gov’t Code § 311.034.

Southwestern then filed a plea to the jurisdiction, contending that it had no pre-suit notice (formal or actual) of the Arancibias’ claim. The court of appeals did not reach this issue, because it held that this case, filed years before the 2005 amendment, was not governed by its terms—an issue that has led to considerable disagreement among our courts of appeals (including a split between Houston’s First and Fourteenth Districts).

Chief Justice Jefferson delivered the majority opinion, in which Justice Hecht, Justice Medina, Justice Green, Justice Willett, Justice Guzman, and Justice Lehrmann joined.

The Court held that the amendments did apply retroactively — but that UT Southwestern should lose on a different ground. The Court looked at the pre-suit notice in this case and determined that it had “actual notice” of the possible claim.

Justice Johnson delivered a dissenting opinion, in which Justice Wainwright joined. The dissent would have concluded that “actual notice” requires “timely, subjective awareness that [the defendant] was at fault.”

Commentary: This “actual notice” holding deserves more attention than I can give it in this morning’s blog post. It only applies in those situations where a plaintiff has failed to send a formal notice (and so must fall back on whether the governmental unit itself had “actual notice”). But it may give some hope to plaintiffs who for whatever reason have not retained counsel before that clock runs.

Today’s unanimous opinions

• Texas Industrial Energy Consumers v. Centerpoint Energy Houston Electric, LLC; Public Utility Commission of Texas, No. 08‑0727 (Willett, J.) (DB). This is a case about certain charges permitted by the PUC relating to electricity deregulation that were passed through to buyers. The Court ultimately concluded that the PUC’s determination was correct.

• James Lee Sweed v. Jay L. Nye, et al., No. 09‑0465 (per curiam). The Court concludes that a timely but deficient notice of restricted appeal — that was later amended — was enough to invoke the court of appeals’s jurisdiction.

• In re 24R, Inc. d/b/a The Boot Jack, No. 09-1025 (per curiam) (DB). An arbitration clause in a separate signed document is not undermined by a personnel manual that says the employer can change employment terms at will.

• Millard Vaughn and Barbara Vaughn v. Paul Drennon and Mary Drennon, No. 10-0226 (per curiam) (DB). A final judgment entered after a conventional trial on the merits is presumed to be final as to all parties and all issues, even as to parties not mentioned at trial or who had claims not adjudicated at trial.

Dismissed as Improvidently Granted

Today, the Texas Supreme Court dismissed as improvidently granted the petition in Hyde Park Baptist Church v. Tara Turner and Terry Curtis, No. 09-0191 (DB). This case was argued before the Court in September. With today’s order, the Court withdraws its previous grant of review and denies the petition.

Because I helped represent the Respondents in this case, I will cut this discussion short. (You can read about the relative rareness of such an order in this previous post.)

Three new petitions granted

• Insurance Company of the State of Pennsylvania v. Carmen Muro, No. 09-0340 (DB). A workers compensation case about the proof needed to show “total loss of use.” Set for argument December 8, 2010.

• Service Corporation International and Sci Texas Funeral Services, Inc., d/b/a Mont Meta Memorial Park v. Juanita G. Guerra, Julie Ann Ramirez, Gracie Little and Mary Esther Martinez, No. 09-0941 (DB). The petition includes an issue about when evidence of other bad conduct can be used to support punitive damages. Set for argument December 9, 2010.

• ECOM Real Estate Management, Inc. v. The City of Midlothian, Texas, No. 10-0150 (DB). This case asks whether a City has immunity from suit when a landowner asserts the breach of a previously agreed easement. Set for argument December 9, 2010.